Ca Bar: Evidence (2009)

CA Bar, Evidence (2009)

CA BAR: EVIDENCE Essay Tips A. Missing one piece of evidence won’t throw off everything else B. Raise as many objections to each piece of evidence as you can think of C. As many arguments for admissibility D. But be shallow about analysis I. Relevance A. Rule: Irrelevant: is inadmissible. Relevant evidence might be admissible; is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable 1. “Fact of consequence”-based on substantive knowledge of the law 2. “More or less probable”-affect probabilities to any degree 3. Relevance vs probative value: a. Relevance is on/off switch b. Probative value: q of degree B. Rule: court has the discretion to exclude evidence whose probative value is substantially outweighed by unfair prejudice, confusion or waste of time 1. Emotionally disturbing 2. Admissible for one purpose, inadmissible for another purpose—if we admit for one purpose, then jury might consider it for the inadmissible purpose C. Policy reasons to exclude: 1. Rule: exclude evidence of liability insurance to prove culpable conduct like negligence or D’s ability to pay a judgment. Otherwise the purchase of (socially useful) liability insurance would be discouraged. 2. Rule:subsequent remedial measures or repairs are inadmissible to prove culpable conduct, or in a products liability case, defective product design. Otherwise, would discourage repairs or re-designs. a. Product liability: repair evidence inadmissible to prove that original design was defective b. But can be used to rebut defense of no feasible precaution:defense alleges not only nonnegligence but also that there was no other feasible precaution to take. P can then use repair evidence to rebut that claim. 3. Rule: settlements, offers to settle, plea bargaining and pleas of nolo contendre + related statements are inadmissible to prove liability or fault. a. Exception: statements made before any claim has been asserted is admissible b. Exception: even if suit has been filed, if there’s nothing in dispute, then settlement rule doesn’t apply 4. Rule:payment or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. But related statements remain admissible. a. Distinguishing b/t rules on settlement offers and on payment of medical expenses: “If you will sign a release, I will pay your medical bills. I admit that I shouldn’t have dropped that banana peel” is inadmissible under the settlement rule. D. Similar occurrences: 1. When there are certain similarities b/t the evidence and other people may be relevant 2. Types: a. To prove causation 1) To show that other people, similarly situated as P, were affected in a similar way as P 2) Ex: P got sick from D-restaurant’s food. P can point to another person, who ate at the same time and same restaurant as P, who also got sick. b. Prior accidents or claims 1) Prior accidents or claims is generally inadmissible b/c are irrelevant 2) Exception: pattern of fraudulent claims/lawsuits 3) Exception: prior accidents may be used to show pre-existing conditions or injuries c. Previous similar acts 1) To prove intention of the actor A) Ex: in employment discrimination case, P shows that in 100 other instances, when a qualified female applied for the job, D always hired a male 1

CA Bar, Evidence (2009)

d. Evidence relevant to rebut a defense of impossibility 1) Ex: D claims that the injury is impossible and could not occur, P can offer evidence that same injury occurred at any other time to rebut and show not impossible e. Comparable sales can be relevant to establish value 1) Evidence of sales price of similar property in same area and sold at same time is relevant f. Habit evidence 1) Is admissible and relevant to show that person acted in accordance w/ the habit on the occasion in question 2) Habit vs Character Evidence: A) CE: says something general about a person and conveys a moral judgment; typically inadmissible B) Habit: describes specific conduct and makes no moral judgment; must be frequently repeated conduct g. Routine business practice 1) Routine business practice is relevant to show that conduct of the entity was in conformity therewith on occasion in question h. Industrial custom evidence relevant to prove std of care in negligence case II. Character Evidence A. 4-Q Approach 1. What is the purpose for which the CE is offered? a. B/c character is at issue in the case b. To prove as circumstantial ev of a person’s conduct on the occasion in question c. Offered to impeach or support the credibility of a witness 2. Method or technique used to prove? a. Specific acts of conduct b. Opinion c. Reputation 3. Civil or crim case? 4. Does the evidence prove a pertinent character trait B. CE in Civil Cases 1. Inadmissible to prove conduct except wherecivil claim is based on sexual assault or child molestation. For those cases, D’s prior cases can be used to prove conduct. a. To prove D’s a molester or sexual harasser, character is admissible to prove conduct 2. CE where character itself is at issue: CE is then admissible a. Ex: In a suit for defamation of character where P alleges that D said P was a dishonest businessman. D can call a witness who testifies that P is a dishonest businessman. Admissible b/c character is an issue in defamation cases. b. Other cases where character is at issue: 1) Negligent entrustment 2) Child custody disputes c. All types of CE are allowed in cases where character itself is at issue. C. CE in Crim Cases 1. Is the CE admissible to prove the conduct of someone (usually D or V)? 2. D can open the door to CE. P cannot. But once D opens the door, P can also use CE to rebut. a. Exception where P can introduce first: sexual crimes b. Exception where P can introduce first: where ct has admitted ev of V’s character offered by D, P can be the first to offer evidence that D has same character trait 3. How can CE be introduced, assuming that the door is open? a. Rule: By using reputation and opinion evidence but no specific instances of conduct on DX, D can open door to using CE. 1) Ex: to show nonviolence, D, on DX, cannot call a W to testify that he once saw D attacked but D didn’t retaliate or even defend himself  inadmissible. b. Rule: But on CX, any party can use reputation, opinion and specific instances to rebut the character evidence that D raised 4. Victim’s character to prove victim’s conduct 2

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a. P cannot introduce CE first. b. Exception 1: if D offers evidence of V’s character, then P can rebut c. Exception 2: If in a homicide case, D offers evidence that V attacked him first, P can offer evidence of V’s character for peacefulness Rule: after ct admits D’s evidence of V’s violent character, P can now offer evidence of D’s violent character. Rule, p. 12(e) Sexual Assault Cases (civil or crim) a. Crim: reputation and opinion are inadmissible. b. Crim: specific instances of V’s conduct are admissible only to prove i) third party source of semen or injury or ii) prior acts of consensual intercourse c. Civil: rep, opinion and specific instances are admissible if probative value substantially outweighs unfair prejudice, and in the case of rep evidence, P put her rep in issue Can use prior bad conduct to prove anything other than character; but ct has discretion to exclude MIMIC evidence for unfair prejudice a. Motive b. Intent c. Mistake (or absence thereof) d. Identity 1) Similarity of features, and 2) Uniqueness of features e. Common Plan or Scheme 1) Similarity

III. Testimonial Evidence A. Who can testify? 1. Show personal knowledge a. You perceived the fact you testified to, w/ 1+ your senses b. PK vs Hearsay: The fact testified to must precisely equal what the witness perceived c. Quoting an out of court statement or explicitly referring to something out of court = hearsay objection d. Perceptions need not be perfect but rather, what a reasonable person could conclude 2. Present recollection: can’t be from some record regarding matters 3. Communication: W must be able to relate perception either directly or through interpreter 4. Sincerity: take oath or affirm to tell the truth 5. Most other qualifications for testifying have been abolished B. Objections to form of testimony and questions. Objections must be timely and specific or else are considered waived. 1. Calls for narrative: question was open-ended; overbroad 2. Unresponsive 3. No leading q’s on DX 4. Ok to lead on CX (CX must stay w/in scope of the direct; going beyond scope turns it into a DX) 5. Leading ok on direct, if adverse witness, hostile witness or witness needing help 6. Assumes facts not in evidence 7. Argumentative 8. Compound: where answer could refer to either component of the q C. Witness use of docs during testimony 1. Watch for hearsay issues 2. Docs are out of court statements 3. Refresh recollection a. Anything can be used incl documents b. Opponent may inspect and offer into evidence anything used to refrelsh 4. Recorded recollection exception to hearsay rule a. Elements of exception: 1) W once had personal knowledge of the facts 2) Document was made by the witness or was adopted by the W 3

CA Bar, Evidence (2009)

3) When facts were fresh in W’s memory 4) Doc was accurate when made 5) W now has insufficient recollection to testify D. Opinion testimony 1. Normally inadmissible 2. Lay opinion: a. Admissible if rationally based on the perception’s W and helpful to the trier of fact 1) Must be based on W’s perception 2) Rationally based 3) Helpful to the jury b. Can’t be scientific. c. It’s helpful if it gives the jury more info than would testimony limited to describing W’s perceptions. Must be rationally based. d. Legal conclusions not helpful. 3. Expert a. Helpful 1) Expert uses specialized knowledge to reach a conclusion that the avg juror could not figure out for herself. b. Witness must be qualified 1) Don’t necessarily need academic experience; can include experience c. W must believe in opinion to a reasonable degree of certainty d. Opinion must be supported by a proper factual basis 1) Admitted evidence A) Cannot be based on a phony version of prior W’s testimony or on a hypo 2) Personal knowledge 3) Inadmissible evidence reasonably relied upon A) Ie, relying on a report that would otherwise be inadmissible hearsay e. Opinion must be based on reliable principles that were reliably applied 1) Daubert scientific reliability: peer reviewed, tested and re-tested, low error rate and reasonable level of acceptance = std for accepting scientific opinion 2) Must be reliable from a common sense standpoint; Kumho says use common sense criteria, ie logical consistency 3) Learned treaty credibility E. Evidence of W credibility 1. Evidence to support credibility is inadmissible unless credibility is attacked first. a. Prior consistent statements is admissible for all purposes if made before the inconsistent statement. Otherwise it is inadmissible for any purpose. 2. Impeachment a. Analysis: 1) Is the source of impeachment extrinsic evidence or testimony or testimony at this proceeding? 2) If extrinsic (any evidence other than testimony given at this proceeding by this W), is it admissible given the impeachment technique? 3) Any other foundation requirements? b. Impeachment by Contradiction 1) Extrinsic ev inadmissible to impeach on a collateral issues (fact not material to the issues in the case that says nothing about W credibility other than to contradict him). c. Impeachment by prior inconsistent statements 1) PIS of W’s who testifies at trial is not hearsay if previous statements were given under oath at trial or depo. (Otherwise, if offered to prove the fact asserted, then it’s hearsay and thus inadmissible.) 2) Extrinsic evidence of PIS is inadmissible to impeach on a collateral matter 3) Foundational requirements for extrinsic evidence a. Only admissible if W is given the opportunity to explain or deny the prior inconsistent statement d. Impeachment w/ evidence of bias, interest, motive 4

CA Bar, Evidence (2009)

1) Foundation requirement for extrinsic evidence—EE only admissible only if you give the W to explain or deny the bias, interest or motive e. Impeachment w/ conviction for crimes involving false statements 1) Ie, perjury, forgery and fraud 2) Is admissible, no balancing on unfair prejudice vs probative value (unless 10+ years old) to prove character of W to prove/disprove credibility. a) Felony/misdemeanor doesn’t matter b) Unfair prejudice isn’t a bar to admissibility unless very old conviction (10+ years) f. Impeachment w/ conviction for crimes not involving false statements 1) Murder, robbery, rape etc. 2) Can be admitted but cts can exclude for unfair prejudice 3) Misdemeanors that do not involve false statements are inadmissible. g. Final point on Conviction Impeachment 1) If conviction is otherwise admissible under the above rules, the conviction can be proven w/ extrinsic evidence 2) If the conviction is 10+ years old or release from prison (whichever is greater) is 10+ years old, it’s inadmissible unless probative value outweighs. h. Impeachment w/ non-conviction misconduct ev bearing on truthfulness 1) Acts of misconduct that didn’t result in conviction are admissible to impeach if the acts involved lying only 2) Both crim and civil cases 3) Extrinsic evidence to prove the acts isinadmissible. Impeacher can only c/x W about her misconduct. i. Impeachment w/ rep and opinion evidence regarding truthfulness 1) Extrinsic evidence is admissible to impeach IV. Hearsay Preliminaries: -It’s inadmissible b/c the speaker (declarant) can’t be c/x’ed when she speaks out of court. Thus we can’t tell if the speaker is lying or not. -But it’s only a problem if the evidence is being used to prove those facts. If it’s being used to prove anything else, we do not need to be able to CX the declarant b/c it doesn’t matter if she’s lying or mistaken about facts. -Rule: it’s an out of court statement being used to prove the truth of the matter asserted A. Definition 1. An out of court statement offered to prove the truth of the matter asserted. 2. Statement = verbal or written expression of a person or conduct by a person intended to communicate (“assertive conduct.”) a. NB: animals and machines can’t “make statements” unless person is involved and is stating what the machine or animal “communicated.” 3. Out of court = out of this courtroom/proceeding. 4. “Offered to prove the truth of the matter asserted” a. Approach: 1) Find the statement 2) Ask what is offered to prove? (Does q tell you, if not, consider who offered the statement and what would it be relevant to prove in that party’s case?) 3) Given what it’s being offered to prove, will the jury be misled if the out of court speaker was lying or mistaken? If yes—hearsay. If no—not hearsay. B. Not hearsay 1. Words of independent legal significance, where words themselves are key: a. “I accept your offer” in K law. b. Words of defamation. c. Words to establish adverse possession d. Words of gifting 2. Not hearsay if statement is used to show effect on listener 5

CA Bar, Evidence (2009)

3. Not hearsay if in a contributory liability scheme, statement is offered not for its truth but rather, the fact that the statement exists = a warning to P to obey 4. Not hearsay if statement is offered to show speaker’s knowledge of the facts stated 5. Not hearsay if statement is used as circumstantial evidence of state of mind (directly describing what state of mind can be hearsay) 6. Hearsay even if out of court declarant is now an in-court witness and quoting her out of court statement if offered to prove the truth of the matter. The prob is that even though we can CX the W now, we couldn’t CX her when she made the prior statement. C. Exemption to the Hearsay Rule: 1. Admissible b/c it’s not hearsay no matter what it’s offered to prove 2. Admission by Party Opponent a. Statement by the party or by someone attributable to the party, and offered by the party-opponent b. Party admissions need not be against interest at the time they are made c. Party admissions are not subject to: 1) Requirements of personal knowledge and 2) Statement violates the opinion rule (no legal conclusions)—party admissions can make legal conclusions. 3. Vicarious Party Admissions a. Main types: 1) Statement by an authorized spokesman for the party, or A) Expressly authorized, or B) Impliedly authorized C) Incl. when company is speaking for itself or when any high ranking corporate officer makes statement 2) Statement by an employee of the party: A) Concerning a matter w/in the scope of employment and B) Made during the employment relationship b. Other types: 1) Adoptive admissions (nonparty makes statement and party indicates belief in its truth) 2) Co-conspirator makes statement during course of and in furtherance of the conspiracy; is treated as an admission by every member of the conspiracy 4. OOC Statements by Declarant who Now Testifies at Trial a. Prior inconsistent statements given under oath at trial or depo b. Prior consistent statements offered to rebut charge of recent fabrication or improper influence or motive c. Statement of identification of a person made after perceiving the person D. Exceptions to the Hearsay Rule 1. If there is no exemption, and there is hearsay, is there an exception to the hearsay rule? 2. Former testimony a. Rule: testimony given by a person at an earlier proceeding, trial or depo is admissible if: 1) The party, against whom the testimony is now being offered had, during the earlier proceeding: A) an opportunity to examine that person, and B) the motive to conduct that examination was similar to the motive the party has now, or 2) Predecessor in interest: In a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship w/ someone who was a party to that earlier proceeding. b. Rule: declarant must be unavailable to testify at trial; he is unavailable if: 1) Court exempts the delcarant from testifying due to privilege 2) The proponent cannot procure declarant’s attendance by process 3) Declarant is dead or sock 4) Declarant refuses to testify despite court order 5) Declarant’s memory fails 3. Declaration against interest a. Rule: OOCS is admissible if it was against the financial interest of declarant or would have subjected him to criminal liability. Declarant must be unavailable. 6

CA Bar, Evidence (2009)

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b. Rule: if the statement is offered to exculpate the accused (ie to show someone else, the declarant, confessed to the crime), there must be corroborating evidence to admit the statement. Declarant must be unavailable. Dying declaration a. Rule: OOCS by declarant who believes he is about to die; statement must concern the cause or circumstances of the impending death. 1) Must be unavailable 2) Civil: admissible 3) Criminal: only admissible in homicide prosecutions Excited utterance a. Rule: hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by even or condition. Declarant need not be unavailable. b. Passage of time doesn’t matter as long as declarant makes statement while under emotional stress of some kind. Present sense impression a. Rule: hearsay statement is admissible if describing or explaining an event or condition while declarant was perceiving the event or condition or immediately thereafter. Declarant need not be unavailable. b. Passage of time matters—statement must be contemporaneously w/ event. c. Declarant need not be “excited.” State of mind exception a. Rule: hearsay statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed. No need to show declarant unavailable. b. We think that when a person is describing what they are feeling internally, they will not make a mistake. c. But when people describing what’s going on outside of them, they can make perceptual mistakes. d. Examples: 1) To prove plan, intention etc – admissible 2) Jury can infer action in accordance w/ the plan or intention. Statement of past or present mental or physical condition made for medical diagnosis or treatment a. Rule: hearsay statement by 1 person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. No need to show declarant unavailable. b. Includes not just the condition itself but also the cause of the condition as long as it’s pertinent to medical treatment or diagnosis. c. NB: 1) Child making statement to mom about his physical condition is admissible under the medical diagnosis exception 2) The statement to get medical diagnosis/treatment need not be made by the patient himself. Can be made by someone else looking to get medical treatment for the patient. Business record exception a. Rule: is admissible if: 1) A record of events, conditions, opinions or diagnoses 2) Kept in course of regularly conducted business activity 3) Made at or near time of matters described 4) By persons w/ knowledge of the facts in that record 5) It was regular practice of biz to keep such records b. Ct may exclude if untrustworthy. No need to show declarant unavailable. Public records exception a. Rule: 1) Record describes the activities of the office 2) Record describes matters observed pursuant to duty imposed by law, ie by cops in a report, or 3) Record contains factual findings resulting from investigation made by legal authority, ie an agency; but speaker must be a public employee 7

CA Bar, Evidence (2009)

4) unless untrustworthy b. NB: in a criminal case, prosecution cannot use #2 or #3 11. Judgment of previous conviction a. Rule: hearsay statement describing felony conviction (ie copy of judgment of conviction) is admissible in both civil and crim cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. No need to show declarant unavailable. E. Confrontation Clause 1. Even if hearsay law doesn’t make the evidence inadmissible, the CC might make the OOCS inadmissible when offered by the P against D in a criminal case. 2. Crawford: CC excludes out of court statements if declarant does not testify at trial, is now unavailable, the statement is “testimonial,” and D had no chance to CX the declarant when it was made. 3. “Testimonial” at least applies to statements made in court and statements made to further a police investigation aimed at producing evidence for the prosecution. Statements to police to deal w/ an ongoing emergency are non-testimonial and their admissions don’t violate the CC. V. Writings and other Physical Evidence A. Authentication 1. Rule: every item of non-testimonial evidence must be authenticated—evidence to prove what the proponent claims it to be. BoP is low—“sufficient to sustain finding.” 2. Signatures: a. Admission by writer b. Eyewitness testimony to the writing c. Expert opinion comparing signature to genuine example d. Lay opinion comparing signatures e. Circumstantial evidence 1) Ancient Docs Rule: authenticity is established if: A) Doc is 20+ years old B) Does not on its face present an irregularities, ie erasures C) Found in a place where it’d customarily be located f. Genuine exemplar: admit the genuine signature and let jury compare whether the disputed letter is signed by the D to the genuine exemplar g. Even if authentication is disputed, it’s still admissible. The BoP is low. But jury gets to hear all disputed evidence on authenticity and will decide for itself. 3. Self-authenticating writings a. Certified copies of public docs b. Acknowledged docs, ie where original signature is attested before a notary c. Official publications (govt pamphlets) d. Newspapers, periodicals e. Business records f. Trade inspections: label purported to have been attached in the course of business and indicates ownership, control or origin 4. Photos a. Rule: personal knowledge issue; does the fact testified to = the fact the witness perceived? b. Any eyewitness to what’s being depicted can authenticate the photo to answer the question; is this a fair and accurate depiction? c. But if the question is about specifics, then you’ll need photographer to authenticate. 5. Authentication of non-unique items a. How to authenticate items that are facially indistinguishable from other items? b. Lay a chain of custody demonstrating that this specific item is what the proponent claims it to be. c. Small breaks in the chain of custody is not a problem since BoP is low. But a big break will make it inadmissible. B. Best Evidence Rule 1. Rule: applies only to prove the contents of a writing; get the original “writing” a. “Writing”-any tangible collection of data, incl videos, photos, x-rays, audio recordings, computer disks 8

CA Bar, Evidence (2009)

2. When is evidence being offered to prove the contents of a writing? a. Case turns on the contents of a legal instrument, ie a K b. Knowledge obtained from a writing: W is testifying as to facts but her knowledge is coming from reading a writing 3. Voluminous Docs Exception: even when someone is talking about the contents of volumes of writing, don’t apply the BER and let the W testify as to the summary of the contents of the documents; but docs must be available for inspection. 4. Assuming BEV is applicable, what type of evidence is admissible to prove the contents of the “writing?” a. Originals and computer printouts b. Certified copies of public docs c. Duplicates: a copy of the original produced by the same impression that produced the original (ie a carbon copy) or a copy produced by a machine (ie photocopying) 1) Exception to the admissibility of duplicates: not admissible if there’s a genuine question raised as to the authenticity of the original d. Testimony regarding contents of writings may be admissible where original has been lost or destroyed, unless bad faith by proponent of testimony VI. Privileges A. FRE gives the courts the power to establish privilege. Fed cts recognize: 1. Attorney-client 2. Spousal 3. Psychotherapist-patient 4. Social worker-client 5. NB: in civil actions under diversity jurisdiction, state privileges apply in fed ct B. Attorney-Client 1. Rule: comm. b/t attorney and client or their reps intended by client to be confidential and made to facilitate legal services is privileges in all civil and crim proceedings unless waived by client. a. Ex: P’s statements made to a doc, hired by P’s lawyer to help prepare him for litigation: P’s communications to the doc is protected by the A-C privilege, as long as made to facilitate legal services; doctor-patient doesn’t apply here. b. The doctor-patient privilege tends to be pretty weak. c. Objective std of intent to keep confidential. d. Communication b/t attorney, client, paralegal and an employee of the client = everyone’s protected; but purpose of the communication must be professional legal services. e. Privilege survives the death of the client and the death of the A-C relationship. 2. Corporations: privilege applies to communications from employees/agents if the corporation authorized the employee/agent to communicate to the lawyer. 3. Exceptions where A-C doesn’t apply: a. Professional services sought to further what a client knew or should have known to be a crime or fraud 1) Client can’t ask lawyer for help to further a crime or fraud, ie “help me escape” b. Communication relates to an alleged breach of duty b/t lawyer and client 1) Cases of attorney malpractice, privilege doesn’t apply—lawyer can disclose in context of this kind of suit c. 2+ parties consult an attorney on a matter of common interest and the communication is offered by of these parties against another C. Psychotherapist-Patient/Social Worker-Client 1. Patient/client must have intended the communication be confidential; purpose must be to facilitate professional services. 2. Patient/client can waive. D. Doctor-Patient 1. There is no dr-patient privilege recognized by the federal rules. But most states have adopted it—so if in fed ct under diversity jurisdiction, then apply state privileges. Sometimes the MBE q’s will assume the existence of the privilege. 9

CA Bar, Evidence (2009)

2. A patient has a privilege to prevent the disclosure of info confidentially given to a physician where the patient gave the info to facilitate diagnosis/treatment and where the info was pertinent to the diagnosis/treatment. Includes doctor’s diagnosis and treatment + reports thereof. 3. Exceptions: privilege doesn’t apply when: a. Patient puts his physical condition at issue, ie a personal injury suit b. Where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort c. In case alleging break of duty arising out a of a dr-patient relationship, as in a malpractice action d. Some states (incl. CA) don’t recognize this privilege in crim cases E. Spousal Privileges 1. Rule: Spousal testimonial privilege: grants privilege for one spouse not to testify against the other spouse, as to anything. Applies only in criminal cases. Is owned by the W, not the D. So if W-spouse wants to testify against D-spouse, W-spouse can. 2. Rule: Spousal confidential communication privilege: protects confidential spousal communications made during marriage. Applies in both crim/civil cases. Both spouses can assert the privilege as against the other to prevent the other from communicating. 3. Have to prove: a. Legally valid marriage at the time of trial, even if unmarried at the time of the event in q b. But neither privilege applies where 1 spouse is charged w/a crime against the other spouse or against one of the kids 4. If spouses are married when statement is made, but are now divorced by the time of trial, then the privilege continues. ??? Judicial Notice A. Facts appropriate for judicial notice 1. It’s the process of establishing facts w/o presenting evidence. 2. Cts can take judicial notice of facts not subject to reasonable dispute b/c they are either: a. Generally known w/in the jurisdiction or b. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned 3. Cts can take judicial notice of facts established by unquestionable accuracy. B. Procedure for taking judicial notice: 1. A party can request JN to compel it. 2. If not requested, court has discretion to take judicial notice. a. If requested in a civil case: cts instruct jury that it must accept noticed fact as conclusive b. If requested in criminal case: cts instruct jury that it may, but is not required to accept judicially noticed fact. 3. Judicial notice may occur at any time, even on appeal. CALIFORNIA DISTINCTIONS on EVIDENCE Special Rule A. CAL: in a crim case, mention the Truth in Evidence rule, (Prop 8)—this makes all relevant evidence admissible in a criminal, even if it might be objectionable under the California Evidence Code (CEC) B. Exceptions to TiE Rule: CEC objections still work: 1. Exclusionary rules under US Con, such as the Confrontation Clause 2. Hearsay law 3. Privilege law 4. Limits on CE about the V in a rape case 5. The rule prohibiting the prosecution from offering evidence of a D’s character before the D opens the door 6. Secondary Evidence Rule (CA’s version of the Best Ev Rule) 7. CEC 352 (court’s power to exclude if unfair prejudice substantially outweighs probative value) C. Approach to applying CA law on an essay: 1. Raise all CEC objections 2. For each objection, mention if Prop 8 overrules the objection. Or do the Prop 8 exceptions apply? 3. If evidence seems admissible under P8, balance under CEC 352. 10

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Relevance A. Relevance Defined 1. Definition: SAME: evidence is relevant if it has any tendency to make the existence of any fact that is of consequence, more or less probable a. CEC: the fact of consequence must also be in dispute b. FRE: fact of consequence need not be in dispute B. Exclusion of relevant evidence for policy reasons 1. Subsequent remedial measures or repairs a. SAME: evidence of safety measures or repairs after an accident is inadmissible to prove negligence b. FRE only: is also inadmissible to prove defective design in a products liability action, that’s based on an S/L theory and not negligence c. CEC: evidence of repairs is admissible to prove defective design in a products liability action on S/L 2. Settlement a. CEC +: discussions during mediation proceedings, are also inadmissible 3. Offers to pay medical expenses a. SAME: inadmissible when offered to prove liability for injuries in q b. CEC +: admissions of fact made in the course of making those payments or offering to make payments are inadmissible c. FRE: only excludes such statements if made during settlement discussions 4. Expressions of Sympathy: a. FRE: no comparable fed rule; all expressions of sympathy including fault are admissible b. CEC: makes inadmissible in a civil action, expressions of sympathy are inadmissible relating to suffering or death of an accident V. But statements of fault made in connection w/ such an expression are not excluded. 5. Pleas later withdrawn, offers to plea and related statements a. FRE: inadmissible b. CEC: inadmissible 1) Tip: on an essay, raise the issue and mention that even if P8 applies to such evidence, (b/c it’s relevant and goes to D’s guilty state of mind) the court may still exclude for unfair prejudice. A) CEC would exclude. B) P8 might make it exclude. C) But the law’s not clear on that and a court always has the discretion to balance probative value against unfair prejudice. Character Evidence A. Civil Cases 1. Inadmissible to prove conduct. a. FRE: inadmissible to prove conduct. 1) Sexual Crimes Exception: in a civil case where claim is based on sexual assault/child molestation, D’s prior acts of assault/molestation can be admitted to show character and conduct b. CEC: inadmissible to prove conduct. 1) No sexual crimes exception as FRE. 2) No P8 issue as this is a civil case. B. Crim Cases 1. Issues: a. Is CE admissible to prove conduct of D? b. Is CE admissible to prove conduct of V? c. Usually both doors are closed to P, at outset. Usually D can only open first. Usually are opened separately. d. CE tends to follow this. 2. Admissibility of ev of D’s CE to prove conduct: a. CEC: P can’t offer first; can usually only do so to rebut after D opens door by opening CE door himself. 1) P8 doesn’t change this rule. 11

CA Bar, Evidence (2009)

b. Exceptions where P can open first: 1) Sexual assault/child molestations A) FRE: yes B) CEC: yes 2) Where court has admitted evidence of V’s character offered by the accused, P can offer evidence that accused has same character trait-refers to any character trait A) FRE: Yes B) CEC: no 3) In prosecution for crimes of DV: P can open first: A) FRE: no such rule B) CEC: yes 4) Where court has admitted ev of V’s character for violence, offered by the accused, P may offer evidence that the accused also has a violent character A) CEC: narrower exception of #2; only works if we’re talking about the character for violence c. FRE: if D opens the door, on DX, rep and opinion evidence are ok, but not specific instances of conduct. On CX, all are admissible. a. CEC: admits only reputation and opinion ev to prove D’s character, whether on DX or CX— specific instances are inadmissible. But P8 makes it all admissible, incl relevant specific instances, subject to 352 balancing, provided that D opened the door. (P8 doesn’t open the door to P to use CE first.) 3. Admissibility of ev of V’s character to prove V’s conduct a. FRE/CEC: most of the same rules apply 1) P can’t be the first to bring up V’s character 2) Trial begins w/ door closed to the V’s character 3) FRE Exception: in a homicide case, P can be the first to offer evidence that V has a peaceful character if D contends that V attacked first. 4) CEC: P8: assuming the door is open on V’s character, if evidence of V’s character is relevant, it is admissible subject to 352 balancing. 5) CEC: rep, opinion and specific instances permitted on both DX and CX Testimonial evidence A. W Competency 1. BOTH: W must testify w/ personal knowledge, ability to communication, oath to tell the truth, claim to recall what they perceived a. CEC: have to show that W understands their legal duty to tell the truth. Ie if they have mental probs or are very young, then CA makes the W incompetent 2. CEC: will DQ witnesses who have been hypnotized to help refresh recollection except in a crim case, witnesses who have been hypnotized by police using procedures that protect against suggestion are considered competent a. FRE: no similar disqualification B. Expert Opinions 1. BOTH: Requirements to admissibility: a. Must be helpful to the jury b. Be qualified c. Believe in opinion to a reasonable degree of certainty d. Opinion must be supported by proper factual basis, and e. Must be based on reliable principles reliably applied to the facts  this is where they differ 2. FRE Daubert/Kumho Std: a. Publication/peer review b. Error rate c. Results are tested/retested d. Reasonable level of acceptance e. Non-scientific: reliability determined ad hoc looking at facts/circumstances 3. CEC Kelley/Freye Gen Acceptance Std 12

CA Bar, Evidence (2009)

a. Opinion must be based on principles generally accepted by experts in the field b. Std is not altered by P8 b/c it’s a std of relevance c. Is inapplicable to non-scientific AND medical opinions—use facts/circumstances here 4. Learned Treatise Hearsay Exception: a. FRE: admissible to prove anything if treatise is accepted authority in the field b. CEC: only admissible to show matters of general notoriety or interest, meaning that this is much narrower and almost never applicable (why would you need a treatise to show gen notoriety or interest) C. Evidence of W Credibility: Impeachment 1. Prior Inconsistent Statements a. BOTH: not hearsay if offered only to impeach the W b. FRE: if given under oath at trial or depo, also not hearsay to prove the truth; otherwise is hearsay c. CEC: hearsay if offered to prove the truth of facts asserted but is admissible under an exception which extends to all inconsistent statements of a W, whether or not they were under oath 2. Impeachment w/ prior felony conviction a. FRE: all felonies involving false statements (perjury, forgery, fraud) are all admissible; no balancing except for old convictions. Non false statement convictions may be admissible but ct has to balance. b. CEC: all felonies involving moral turpitude are admissible to impeach a W but court has to balance. Felonies not involving moral turpitude are not admissible. P8 doesn’t make such felonies admissible b/c convictions must involve crimes of moral turpitude to be relevant in CA. 1) “Moral turpitude”-lying, violence, theft, extreme recklessness, sexual misconduct; but not crimes for merely negligent or unintentional acts. 2) Ie, involuntary manslaughter would not be a crime of MT b/c it’s involuntary 3. Impeachment w/ Prior Misdemeanor Conviction a. FRE: all misdemeanors involving false statements are admissible—no balancing. All other misdemeanors are inadmissible to impeach. b. CEC: misdemeanor convictions inadmissible to impeach. But P8, misdemeanors can be admitted in a crim case if involving a crime of moral turpitude, subject to balancing. 1) “Moral turpitude”-lying, violence, theft, extreme recklessness, sexual misconduct 2) Thus can’t be used in civil cases to impeach. 4. Final points on conviction (felony and misdemeanor) evidence a. See p. 58 5. Non-conviction misconduct bearing on truthfulness a. FRE: admissible in civil and crim cases, subject to balancing; must be an act of lying; extrinsic evidence inadmissible but may ask W about her misconduct on CX b. CEC: inadmissible but P8 makes it admissible in crim cases if relevant. To be relevant, the misconduct must be an act of moral turpitude; both CX and extrinsic evidence permitted; subject to balancing. Hearsay A. CEC: hearsay law is exempt from coverage of the Truth in Evidence/P8. Thus, even in crim case, the usual rules of evidence apply. B. CEC/FRE: basic definition of hearsay is identical. Differences come up w/ exceptions and exemptions. 1. FRE has both exemptions and exceptions. 2. CEC: has only exceptions, so call it hearsay but make an exception C. Exceptions/Exemptions 1. Admission by party opponent a. BOTH: admission a statement by a party or someone whose statement is attributable to the party b. FRE: calls this an exemption c. CEC: calls this an exception 2. Vicarious party admissions a. BOTH: statement of authorized spokesman for party is treated as an admission of that party b. FRE: statement by an employee of party is party admission of employer if statement concerns a matter w/in scope of employment and made during employment relp 13

CA Bar, Evidence (2009)

c. CEC: statement by an employee of a party is a party admission of employer only where negligent

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conduct of that employee is basis for employer’s liability in the case under respondeat superior— employer is responsible for employee’s words if also responsible for that employee’s conduct in tort. Prior inconsistent statements of W’s a. BOTH: PIS not hearsay if just offered to impeach b. FRE: if given under oath, exemption to usual hearsay definition and not hearsay—can be used to offer the truth of the matter c. CEC: hearsay if offered to prove the truth of the matter asserted but admissible under exception, which extends to all inconsistent statements of W’s, whether or not under oath. Prior consistent statements of W’s a. BOTH: admissible if made before the bribe or the inconsistent statement; both depend on timing b. FRE: not hearsay under hearsay exemption c. CEC: calls it an exception Declaration Against Interest a. BOTH: a statement by an unavailable declarant is admissible if at the time it was made, it was against the financial interest of declarant or subjected him to crim liability b. FRE: evidence offered to exculpate a defendant (ie a confession of an unavailable declarant), D has to offer corroborating evidence. c. CEC: also w/in the exception is a statement against social interest b/c it risks making declarant an object of “hatred, ridicule or social disgrace in the community.” d. Declarant Unavailability 1) BOTH: declarant is unavailable if court exempts the declarant from testifying if declarant is excused for privilege, is dead or sick, cannot be procured using legal process. 2) FRE: declarant refuses to testify despite court order or declarant’s memory fails on the subject of her statement 3) CEC: regards the declarant as unavailable if declarant suffers total memory loss or refuses to testify out of fear Former Testimony Exception a. BOTH: testimony given in earlier proceeding or depo by a W now unavailable if party against whom testimony is now offered was a party in the earlier proceeding who had an op to examine the W and had a similar motive b. FRE: in a civil case, if predecessor in interest and who an op to examine + motive c. CEC: 1) in a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the W and an interest to conduct that exam similar to the interests against whom the testimony is now offered, OR 2) Similar interest: the former testimony is offered against the person who offered in evidence in her own behalf in the earlier proceeding, or against a successor in interest of such person 3) Related CA Law: depo testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if deponent is unavailable at trial or lives 150+ miles from the courthouse. Otherwise, the former testimony exception doesn’t apply to depo testimony given in the same case in which the hearsay is offered at trial. Dying Declaration a. FRE: declaration by person who believes he’s about to die; need not die b. CEC: must be dead; applies in all civil/crim cases. Present Sense Impression a. CEC: covers statement explaining conduct of declarant made while the declarant was engaged in that conduct b. CEC: OJ Exception: statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or med profession, under trustworthy circumstances Excited Utterance a. BOTH: no need to show declarant unavailable; statements related to startling event or condition are admissible when declarant is speaking under stress or excitement 14

CA Bar, Evidence (2009)

10. Declaration of then existing physical or mental condition a. BOTH: a statement of declarant’s then existing phys or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed. 11. Exception for statement of past or present mental or physical condition made for diagnosis or treatment. a. CEC: more narrow; statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment but only if the declarant is a minor describing an act of child abuse or neglect. Writings and other Physical Evidence A. Authentication B. Best Evidence Rule Privileges A. A-C Privilege B. Dr-Patient Privilege C. Spousal Privileges D. Other CA Privileges Judicial Notice

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