IS EVIDENCE RELEVANT?

What is It Def. of Relevant Evidence Feder al Rule 401 --402 Text Relevant Evidence means evidence having any tendency to make existence of any fact that is of consequence to the determination of the action more probable or less probable than it would or would be without the evidence. -All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the intro of evidence sufficient to support a finding of the fulfillment of the condition. Explanation Very low standard. CE C 14 0 Text "Evidence" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Differenc e? None Rule 1. Must help in some in some minimal way to establish the fact or proposition it sets out to prove 2. The fact or proposition, under controlling substantive law, has something to do with the outcome of the case.

Conditiona l Relevance

104(b)

Conditional evidence makes a factual proposition more or less likely than it would be without the evidence. Cox v. State before you can admit in evidence, must find some condition as fulfilled.

40 3

KNOW PRESENT STATE OF MIND. 803(3).

IS IT EXCLUDED UNDER SPECIAL RELEVANCE RULES?

What Is it Exclusion of Subsequent Remedial Measure

Feder al Rule 407

Text When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, capable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as providing ownership, control, or feasibility of precautionary measures, if controverted or impeachment.

Explanation Evidence D changed/repaired something AFTER it was involved in an injury is not admissible to establish a Ds negligence except for the purposes of ownership, control, or feasibility of best product design. + 1. After an injury, 2. measures are taken 3. that would have made the injury less likely to occur is not admissible. +But if D claims lack of ownership/control/feasibility/impeachment, P can rebut it with subsequent measure

CEC 115 1

Text When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event. No big difference

Difference 407 applies in strict liability cases (meaning exclusion). 1151 does not.

Exclusion of Compromises and Offer of Compromises

408

(a)Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish-or accepting or offer or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a).Examples of permissible purposes include proving a witnesss bias or prejudice, negating contention of undue delay, and proving an effort to obstruct a criminal investigation.

+Rule 408 does not protect offers to compromise before a claim is made. A lawsuit is clearly a claim, though demands will also count sometimes. +Rule 408 says you cant use evidence of compromise to impeach (408a) but you can use it to show bias or prejudice. (408b) +Rule 408 does not prevent independent discovery of evidence taken from an admission during a compromise offer +Rule 408 prohibits statements made in negotiations to be admissible

115 2

What is it Payment of Medical Expenses

FR E 40 9

Text Evidence of Furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for that injury.

Explanation Info about promises to pay for and medical payments cannot be used to show liability. Statements made while paying or promise can be admitted if they show fault. Doesnt exist

CEC

Text

Difference No difference.

Rule Make sure you compare broad/narrow provisions between 408 and 409. Remember to sparse out Im sorry I ran the read light.

Prop 8

1152( a)

Im sorry

NA

1160

Pleas, Plea Discussio n, and Related Statemen ts

41 0

Evidence of the following is not, in any civil or criminal proceeding; Admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn However, such statement is admissible (i) in any proceeding where another statement made in the course of the same plea or plea discussions has been introduced and these statement out in fairness be considered contemporaneously with it, or (ii)in a criminal proceeding for perjury or false statement was made by D under oath, on the record and in presence of counsel.

Only applies to offer of pleas and pleas later withdrawn. Also prohibits plea of NC regardless grade of offense. But there must be a bargain; D cant offer plea when he isnt solicited. -Does not apply to guilty pleas or another statement made in the course of the same plea, and in fairness, statement should be considered -Does not apply to perjury.

1153

Admissibility of expressions of sympathy or benevolence Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.

Huge difference. Im Sorry is inadmissible in CA but is admissible in Fed. 410 explicitly also protects statements made in the course of giving a plea where this has been read into 1153. 1153 allows for statements made during pleas to be used for impeachment purposes. 410 does not allow this. 1153 says pleas can be made to both attorneys and cops. 410 only allows to attorneys. CA allows for admission of NC for felony cases but prohibits for misdemeanor. 1153 makes guilty pleas later withdrawn inadmissible (only in civil cases). Due to Prop 8, guilty pleas later withdrawn are coming in. FRE says that possessing insurance is not probative of fault and lack of possession insurance is not probative of absence of fault.

Affected by Prop. 8. You can allow guilty pleas in. But look for a way to exclude using 352 if its prejudicial.

Liability Insurance

41 1

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or wrongfully. This rule does not require the exclusion of evidence or insurance against liability when offered for another purpose, such

Evidence of insurance and evidence of lack of insurance cannot be admitted to show liability/negligence except for: agency, ownership, control, bias/prejudice, dispute over coverage amount

1155

Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially

Evidence of insurance cannot be shown to show liability.

Exclusion applies in both negligence and strict liability cases. In CA, for strict liability

BUT WATCH OUT FOR PREJUDICE UNDER 403

What is it Exclusion Due to Prejudice Feder al Rule 403 Text Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence Explanation Unfair prejudices is when evidence would cause jurors to be repulsed at the D and convict him on such evidence rather than the crime charged CE C 35 2 Explanation The court in its discretion may exclude evidence if its probative 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. Differen ce No Differen ce Rule Suppress if evidence is unfairly prejudicial, confusing, misleading, undue delay, waste of time, or needless Prop.8 Prop. 8 doesnt affect 352.

Character Evidence
What is it Federal Rule Text Explanation CEC 1100 Text Manner of proof of character. Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific Differenc e

Charact er Evidenc e Generall y (Releva nce)

404(a)

Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

The rule against propensity evidence: Evidence may not be admitted if the only purpose is to support an inference that a person with a certain type of character acted in a way typical of that character at a particular time. +Generally inadmissible in civil cases.

1101(a)

Charact er of accused

404(a) (1)

In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution.

+In Crim cases, P cannot introduce character evidence of D on chief. +The Mercy Rule Exception - Criminal D can introduce his own good character (if relevant) because his liberty/life is at stake. +This opens the door for P to introduce opposing evidence of Vs good nature or Ds bad nature. +only limited to opinion and reputation, no specific instance of conduct.

1102

Charact er of Victim

404(a) (2)

In a criminal case, and subject to limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

In self-defense cases involving death, D or P can introduce evidence victim had a violent character in case in chief (hence, called the homicide exception). Also allow P to rebut such evidence. +Character of V can only come in as opinion or reputation, no specific act. (CA allows for specific act) +P can offer evidence V was a peaceful person if D offered evidence V is first attacker, not necessary for D to offer V is violent for the rebuttal to kick in.

1103(a) (b)

instances of such persons conduct is admissible to prove a persons character or trait. Except as provided in 1102, 1103, 1108, and 1109, evidence of a persons character or trait (whether in the form of opinion, evidence, or reputation, or specific instances) is inadmissible when offered to prove conduct on a specific occasion. In a criminal action, evidence of Ds character in form of opinion or reputation is not made inadmissible by 1101 if such evidence is (a) offered by the D to prove his conduct in conformity with such character (b) offered by prosecution to rebut evidence adduced by defendant under (a). (a)In a criminal action, evidence of the character of the (in the form of opinion, reputation, or specific conduct) victim of the crime for which D is being prosecuted is not made inadmissible by 1101 if the evidence is : (1) offered by D to prove conduct of the victim in conformity with the character or trait of character; (2)offered

Pro p. 8 ha s no eff ect

CEC allows all opinion, reputatio n, and specific instance s to come in against V (in selfdefense cases). FRE only allows the first

by prosecution to rebut evidence adduced by D under (1). (b)In a criminal action, evidence of Ds character for violence (in the form of) is not made inadmissible by 1101 if the evidence is offered by the prosecution to prove conduct of the D in conformity with the character and is offered after evidence that the victim had a character for violence had been adduced by D under (a)(1). Charact er of Witness Other Crimes, Wrongs, Acts. 404(a) (3) 404(b) Evidence of character of a witness, as provide in 607-609. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for purposes of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, provided that upon request by the accused Character evidence that would otherwise be barred for propensity is admissible for impeachment purposes. The Mimic Rule The Huddleston Standard At issue is 404(b). Petitioner is convicted of possession of stolen tapes. He appeals his conviction, arguing prosecution should have not been allowed to introduce evidence of his past attempt of selling stolen tvs. Court says this is fine, that all you need is a preponderance of evidence he did sell tvs to establish he had skills to posses stolen tape, even if he trial for selling tv had resulted in acquittals.

two. +CEC has no homicide exceptio n.

1101(b) ---

Methods of Proving Charact er

405(a)

Reputation or opinion. In all case in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross, inquiry is allowable into relevant specific instances of

Pertinent trait by reputation or opinion only on direct-examination. On cross, specific conduct is allowed.

1103(a)

Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (mimic) other than his disposition to commit such an act. --Nothing in this section affects the admissibility of evidence offered to support or attack credibility. (a)In a criminal action, evidence of the character of the (in the form of opinion, reputation, or specific conduct)

CEC allows all opinion, reputatio n, and

conduct.

victim of the crime for which D is being prosecuted is not made inadmissible by 1101 if the evidence is : (1) offered by D to prove conduct of the victim in conformity with the character or trait of character; (2)offered by prosecution to rebut evidence adduced by D under (1). Whenever a character trait is an element of a civil/criminal case, you can use evidence to prove that trait. In a defamation action, Ps claim that D called him a liar allows D to prove P use evidence to show he is a liar. +You cannot prove it up with extrinsic evidence. 1101

specific instance s to come in for V. FRE only allows the first two. +CEC has no homicide exceptio n. No Differenc e

Methods of Proving Charact er

405(b)

Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct.

CHARACTER EVIDENCE CONCERNING SEXUAL ASSAULT

412(a) (a) Evidence generally inadmissible. The following is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivision (b) &(c): The Rape shield law prevents the use of the Shes a slut defense or for impeachment purposes. 1103(c) More specific: D cant comment on how V was dressed. Evidence about Vs conduct with others can only be introduced in rebuttal. Subject to 352 balancing. For 412(b) (2) civil suits, it is subject to court balancing. For CEC

(1) (2)

Evidence offered to prove that any alleged victim engaged in other sexual behavior. Evidence offered to prove any alleged victims sexual predisposition

412(b)

(b)

Exceptions-

(1)

In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) Evidence of specific instances of sexual behavior by the alleged victim offered

In a criminal case, the exceptions are (A) evidence supports someone other than D was source of semen or other physical evidence, (B) consent with D, or (C) is so crucial exclusion would be unconstitutional. +Under (B), not only can you include

1106 (pertain to 412(b) (2) only

to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) Evidence of specific instances of sexual

behavior by the alleged victim with respect to the person accused by the sexual misconduct offered by the accused to prove consent or by prosecution; and (C) Evidence the exclusion of which would violate the constitutional rights of the defendant (2) In a civil case, evidence offered to prove the sexual behavior of any alleged victim is admissible if it otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. Evidenc e of Similar Crimes 413 (a)In a criminal case in which the defendant is accused of sexual assault, evidence of the Ds commission of another offense(s) of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the govt. intends to offer evidence under this rule, AG shall disclose this evidence to Dat least 15 days before the schedule date of trial or at such a later time as court may allow for good cause.

past sexual history between accused and victim, you can also include evidence that is probative of victims predisposition to engage in sexual activity with accused.

1106 civil cases, victims sexual conduct with others to prove consent is prohibited unless injury alleged by P is loss of consortium.

All evidence of sexual assault (mere accusation sufficient) is coming in no matter how old it is against the D.

1108

(a)In a criminal action in which the D is accused of a sexual offense, evidence of the Ds commission of another sexual offense is not made inadmissible by 1101, if the evidence is not made inadmissible pursuant to 352.

FRE 413-414 allows bad charact er evidenc e for both civil and criminal . 1108 only allows for criminal P. 1108 is much broader, includes showing porn to kids. Unlike the FRE, 1108 also

Child Molesta tion

414

(a) In a criminal case in which the D is accused of an offense of child molestation evidence of the Ds commission of another offense(s) of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the govt. intends to offer evidence under this rule, AG shall disclose this evidence to Dat least 15 days before the schedule date of trial or at such a later time as court may allow for good cause.

1109

(a)(1) criminal action, domestic violence is admissible. (2) criminal action, elder abuse is admissible. (3) in criminal action, child abuse is admissible.

allow judge to weigh the probativ e evidenc e. D can rebut evidenc e with his good charact er evidenc e. No federal counter part to 1109. 1109 also counts rape as acts of domesti c violence . Evidenc e of uncharg ed acts occurrin g ten years ago tends to be inadmis sible.

Civil Cases of Child molesta tion

415

(a)

In a civil case in which a claim for damages or other relief is predicated on a partys alleged commission of sexual assault or child molestation, evidence is admissible and

may be considered as provide in rule 413 and 414. (b) A party who intends to offer evidence under this rule shall disclose the evidence to the party against whom it will be offered at least 15 days before the date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

Habit
What is it FRE 406 Text Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Explanation A regular response under a given circumstance. +predicative +lack of volition +Committee says you cant be habitually violent or alcoholic CEC 110 5 Text Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom. Differen ce None

Impeachment
What is it FRE 607 Text The credibility of a witness may be attacked by any party, including the party calling the witness. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion/reputation but subject to these limitations. (1) the Explanation Anyone call attack the credibility of the witness. Otherwise at the end means impeachment by conviction or corruption. Impeachment by CEC Text Difference

608

787

Subject to 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of

+prohibits the use of prior specific acts to prove whether or not a witness is truthful or untruthful but this basically modified by prop 8 in criminal trial. So 787 only applies in civil trials. +prop 8 criminal makes 787 specific instances can come in subject to 352 balancing. Can use extrinsic evidence and truthfulness allowed in

evidence may refer only to character for truthfulness or untruthfulness , and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Specific Instances of Conduct

608( b)

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by

bias/prejudice doesnt count. Impeachment by contradiction may count but judge will let you explain this with good character evidence. +opinion/rep only on direct, specific act allowed on cross +bias is not an attack +You may only bring in support of honesty after witness honesty has been attacked. +Specific acts of witnesses are not allowed on direct unless they are criminal convictions. +On cross, specific instances of conduct allowed. +W may be asked about his own lies or lies of another witness he is testify of (but you cannot prove it up extrinsic evidence) +But bias, interest (plea-

the witness.

before attack.

any other witness, does not operate as a waiver of the accused's or the witness' privilege against selfincrimination when examined with respect to matters that relate only to character for truthfulness.

deal with DA), corruption, favoritism, and hostility may be proved with extrinsic evidence.

790

Impeachm ent by Evidence of Conviction of a Crime

609

(a)For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than accused has been convicted of a crime shall be admitted, subject to 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and -(2) evidence that any witness has been convicted of a crime shall be admitted, if it can readily be determined that establishing the elements of the crime required proof or admission of an action of dishonesty or false statement by witness. (b) Time limit. Evidence of a conviction under this rule is not

(a)(1) If a witness other than criminal D has been convicted of a felony, evidence of the conviction shall be admitted from the last ten years unless the probative value is outweighed by the prejudice, regardless if it is civil or criminal trial. -(a)(2) conviction of crimes of dishonesty such as perjury will be admitted without balancing. (it can be balanced in

CA Const. Right to TruthinEviden ce -788

Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility. Relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in a adult court. (4) Use of prior conviction: any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for impeachment, or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be prove to the Trier of fact in open court. -Prior Felony conviction. For the purpose of attacking the credibility

+Cannot introduce good character evidence of witness unless he has been attacked. For 790 criminal under prop 8, you are entitled to offer good character evidence even if had not been attacked subject to 352 balancing. Extrinsic evidence and specific acts allowed.

788 lets you use any felony conviction for impeachment for both criminal and civil trial, even one stemming from negligence. But judge can exclude this if the evidence has nothing to offer about veracity of witness (must be a crime of moral turpitude). 788 also has four exceptions: pardon, pardon from rehabilitation, conviction has been set aside because D met terms of probation, witness convicted by another jurisdiction but penalties set aside due to exception #2 and 3. -In criminal cases under prop 8, everything comes in, even misdemeanor convictions. Misdemeanors do not come in under civil. But you must offer the conduct leading to the misdemeanor. You cant offer the conviction itself to make a propensity argument, that it is probative of his character for lack of veracity. -609 allows use of juvenile adjudication to impeach witnesses in limited circumstances. 788 doesnt but with prop.8, you can if misconduct evinces moral turpitude.

admissible if a period of more than 10 years have elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines that the probative value of the conviction supported by the facts and circumstances substantially outweighs its prejudicial effects. Evidence more than 10 years old is not admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence with far opportunity to contest use of such evidence. (c) Pardon: Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudication. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that

CA). -(b) the ten year rule. -The balancing is different from 609. +Conviction only, no arrests or indictments can be used. +Extrinsic evidence allowed.

of a witness, it may be shown by the examination of the witness or by record of judgment that he has been convicted of a felony offense unless: (a) a pardon based on his innocence ahs been granted (b) a certificate of rehabilitation and pardon has been granted to the witness (c) the accusatory pleading against the witness has been dismissed, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties arising from the conviction pursuant to a procedure substantially equivalent to that referred to (b) and (c).

admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of Appeal. The pendency of an appeal there from does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Hearsay: Also remember that in a crim case, you also have to keep in mind of 6th amendment confrontation issue. ALWAYS do this analysis. Confrontation issue arises when you want to introduce hearsay statement from the witness but accused do not have opportunity to cross-examine the declarant (because they recanted in spousal abuse case). How to distinguish between testimonial(not coming in) and non-testimonial (coming in) +Events as they were actually happening (was it to determine past or present events?) +Ongoing emergency, cry for help (Was situation an emergency?) +Statements were elicited to resolve present emergency, rather than simply learn what happened in the past +Interview a higher level of formality - Default setting is look at officers intent. Though some courts have gone with declarants intent.

What Is it Hearsay Statemen t

Federal Rule 801(a)

Text The following definitions apply under this article: (a) Statement. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person asserted.

Explanation A persons words, writing, or conduct can all be statements under the hearsay rule, if the person intended them to convey an idea or information.

CEC 120 0

Text (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.

Difference

Rule

Declarant Statemen t Hearsay Def.

801(b) 801(c)

(b) Declarant. A Declarant is a person who makes a statement. (c) Hearsay. Hearsay is a statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Not that its only people who can make a statement, no machines or animals. A statement made by anyone out of court (including testifying at trial) is hearsay if the proponent seeks to introduce it to support a conclusion that the idea or information it asserts is true. +Is it a statement? -Statements cane be assertive conduct. +Was it made outside of court? +Is it being offered for the truth of the matter asserted?

We exclude for reasons of memory, perception, and truthfulness.

What is it Prior Stateme nt Excepti on

FRE 801(d) (1)

Text A statement Is not hearsay if (1) the declarant testifies at the trial or hearing and is subject to cross concerning the statement and the statement is (A) inconsistent with the declarants testimony, and was given under oath ata trial, hearing, or other proceeding, or in a deposition, -or (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive or -(C) one of identification of a person made after perceiving the person; or

Explanation These are the situations where exceptions are granted. + a statement is inconsistent, under oath, at prior proceeding -Feigning memory loss is inconsistent but unclear if this rule applies if it is true memory loss. Look for I dont remember. -Prior Inconsistent statement does not have to be cross in a grand jury +prior consistent statement -usually used to rebut a charge of fabrication -current statement must be under oath and crossed but prior consistent statement doesnt have to be. -Tome Rule: A prior consistent statement introduced to rebut accusation of fabrication/motive will be allowed but must be made before alleged fabrication. +statement of ID Note that prior inconsistent statements must have been made under oath but prior consistent does not have this requirement (B). Owens Rule Out of court testimony does not have to be cross-examined if witness suffers from memory loss.

CE C 123 5 ----123 8 -770

Text Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and is offered in compliance with 770.

Explanatio n Under 1235, witness must have opportunit y to explain earlier inconsiste nt statement. Under 1235, its for both substantiv e evidence (truth of matter asserted) and impeachm ent purposes. Under FRE, evidence doesnt come in for substantiv e purpose but only to show her lack of credibility. Yes, California is very specific for you have to ask if the event was fresh in the mind when made. Also, no oath

Difference For FRE prior inconsisten t statement, if not under oath, comes in for impeachm ent purposes only. Under the CEC, comes in for all purposes whether or not under oath.

requireme nt.

What is It? Admissio n Exceptio n

Federal Rule 801(d) (2)

Text The statement is offered against a party and is (A) the partys own statement, in either an individual or a representative capacity or B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by party to make a statement concerning the subjection or (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to established the declarants authority under (C), the agency or employment relationship and scope thereof under D, or the existence of the conspiracy and participation therein of the declaration and the party against whom the statement is offered under E.

Explanation One party said it, other party offers it. This is it. +So things like pleading and guilty pleas from subsequent cases count. +Admission by silence, admission by employee. The key is knowing who is a party. So in a criminal case, police, DA, and victims are not parties. Only things said by D can be admitted. No personal knowledge of Declarant required. So declarant needs to say the statement, doesnt have to know anything about it. A co-conspirator statement will not be considered as hearsay if you meet three conditions set out in Bourjaily v. US, 483 US 171 (1987). They are: 1) that a conspiracy existed at the time the out-of-court statements was made 2) that the conspiracy included both the declarant and the party against whom the statement is offered 3) that the declarant spoke during the course of and in furtherance of the conspiracy For conspiracy theories, you only need preponderance of evidence. The conspiracy doesnt even need to be charged. The hearsay statement can be used to support a conspiracy but cannot be sufficient on its own without other supporting evidence.

CE C

Te xt

Differen ce

Rul e

802

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Evidence that fits the explanation of hearsay will not be admitted, though there will be circumstances where excluding evidence on grounds of hearsay would violate constitutional right to present evidence.

Hearsay: Contemporaneous Statements

What is it Availability of Declarant Immaterial FRE 803(1) Text The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event of the condition. Explanation +Triggering event doesnt need to be startling. +Timing is present sense, or immediately thereafter. +Must describe or explain event. CEC 124 1 Text Contemporaneous statement. Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) is offered to explain, qualify, or make understandable conduct of the declarant; and (b) was made while the declarant was engaged in such conduct. Spontaneous statement Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception. Statement of declarants then existing mental or physical state (a) subject to 12442, evidence of a statement of the declarants then existing Difference FRE allows for statements made right after. CEC requires it to be an explanation of ambiguous event. Rule Prop 8

803(2)

Must be sufficiently startling (though no violence is required). +Timing is important, last as long as Decl. is excited. +Must not be selfserving. +Must relate to event. +Usually couple with Crawford confrontation analysis Ask yourself if you use it prove state of mind in a murder, libel, extortion, and fraud case? If not, it wont come in without finding some other exception.

124 0

Though CAs text doesnt say relate as it does in FRE, there is no difference because CA court have made it quite broad.

803(3)

Then Existing mental, emotion, or physical condition. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a

125 0 -125 1 -125 2

1251 does not have a FRE equivalent. Under CEC 1251, past statements are not admissible if declarant is available to testify. FRE doesnt care

statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will.

Ask then if it is prejudicial. Hillmon also lets you use statements that express future acts, no prior acts allowed. If it is a mixture of past and future, look at the main point of statement and give limiting instructions. +then physical

state of mind, emotion, or physical sensation (including mimic) is not made inadmissibly by the hearsay rule when: (1) the evidence is offered to prove the declarants state of mind, emotion, or physical sensation at the time or at any other time when it itself an issue in this action or; (2) 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. -Statement of declarants previously existing mental or physical state. Subject to 1252, evidence of a statement of the declarants statement of mind, emotion, or

about availability.

physical sensation at a time prior to the statement is not made inadmissible by the hearsay rule if: (a)the declarant is unavailable as a witness; and (b) The evidence is offered to prove prior state of mind, emotion, or physical sensation when it itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation. -Restriction on admissibility of statement of metal or physical state. Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate lack of trustworthiness. Prior Statement of Witnesses 613 (a) Examining witnesses concerning prior statements. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. (b) Extrinsic Evidence of (a) common impeachment technique is to show statement that conflicts with what is said at trial. This rule allows questioner to do this without the document. (b) If a party wants to introduce a witness past statement, rather than just ask the

803(4)

Writing Used to Refresh Memory

612

prior inconsistent statement of a witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. The provision does not apply to admission of a party -opponent as defined in 801(d)(2). Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Except as otherwise provided in criminal proceedings, if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifyi ng, or (2) before testifyi ng, if the court

witness about it, the witness must be given an opportunity to comment specifically on that past statement, and the opposing party must also have an opportunity to question the witness about it.

Remember to sparse out medical causes from legal faults. Doesnt matter if statement is told to treating doctor or doctor hired to testify. Can also be told to nurses, parents if it is reasonably pertinent to diagnosis. You can use anything to refresh memory, anything!! Opposing counsel gets to crossexamine and see what you use, jury doesnt and doesnt come into evidence. But the magic word you have to speak is 612. 771

No comparable statute.

(a) Sub ject to sub divi sion (c), if a wit nes s, eith er whil e

If shown to witness before trial, must be produced at trial.

in its discreti on determ ines it is necess ary in the interes t of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed the writing contains matter not related to the subject matter, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except in criminal cases, when the prosecutions elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines the interest of justice so require, declaring a mistrial.

test ifyi ng or prio r ther eto, use sa writ ing to refr esh his me mor y wit h res pec t to any mat ter abo ut whi ch he test ifies , suc h writ ing mu st be pro duc ed at the hea ring at

the req ues t of the adv ers e part y and , unl ess the writ ing is so pro duc ed, the test imo ny of the wit nes s con cer nin g suc h mat ter shal l be stri cke n.

(b)

If the writ ing is

pro duc ed at the hea ring , the adv ers e part y ma y, if he cho ose s, insp ect the writ ing, cros s-x the wit nes s, and intr odu ce in evi den ce suc h port ion if it is pert ine nt to wit

(1)Is not in possession or control of the witness or the party who produced his testimony concerning the matter; and (2) was not reasonably procurable by such party through the use of the courts process or other available means. 803(5) Recorded collection. A Witness must be 123

nes s test imo ny. (c) Pro duc tion of the writ ing is exc use d, and the test imo ny of the wit nes s shal l not be stri cke n, if the writ ing:

No big

Records of Regularly Conducted Activity

803(6)

memo or record concerning a matter about which a witness once had knowledge but how has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from info transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practiced of that business activity to make the memo, etc., as shown by the testimony of custodian or other qualified witness, or by certification. The term business includes businessand calling of every kind, whether or not conducted for profit.

shown to have either slight or no memory of info in document but must know when document was made or accepted as accurate. In this 803(5), you can read to the jury unlike 612. But like 612, you cant move it into evidence. If you dont remember, you might trigger 804(a). Proponent must show that it was regular practice to create records, not just that it was created in the course of regularly conducted business activity. Must have personal knowledge. Can be excluded if it is deemed untrustworthy.

difference

127 0

As used in this article, a business includes every kind of businesswhether carried on for profit or not.

In Fed, trustworthines s is presumed and opponent must prove otherwise. In CA, proponent must show record is trustworthy. In Fed, opinion or diagnosis is admissible. In CA, it is harder and is governed by the opinion rule for witnesses. The further you get away from facts and specific instances, harder to get in. Difference

Situation of Unavailability Hearsay

804(b)

(b)The following are not

Know US v.

129

Former testimony

Exceptions; Declarant Unavailable FORMER TESTIMONY

(1)

excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action, or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

DiNapoli for purposes of sameness. Know 804(a) for definition of unavailability. Testimony or deposition statements are admissible if at the time they were made, the party against whom they are currently sought to be introduced against had an opportunity to develop the testimony by questioning. In addition to the opportunity, the partys motivation at the time of the testimony must have been similar to its motivation in the current trial. In civil cases, a predecessor in interest is equivalent to the current party.

0 -129 2

As used in this article, former testimony means testimony given under oath in: (a)Another action or in a former hearing or trial of the same action; (b) A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the US (c)A deposition (d) An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof -Former testimony offered against person not a party to former proceeding (a)Evidence of former testimony is not made inadmissible by the hearsay rule if: (1) the declarant is unavailable as a witness; (2)the former testimony is offered in a civil action; and (3)The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-x the declarant with an interest and motive similar to that which

between 804(b)(1) and 1290 is FRE allow use of deposition take in same or different case where 1290 only allows depo from different case.

the party against whom the testimony is offered has at he last hearing. The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objection based on competency or privilege which did not exist at the time the former testimony was given. Hearsay Exceptions: Statement Against Interest 804(b) (3) The following is not excluded by the hearsay rule if the declarant is unavailable as a witness: A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating a. Declarant unavailable b. Statement c. At time it was made d. He believed it was contrary to pecuniary or proprietary interest e. or subject him to civil or criminal liability f. no reasonable man would have made Profs Notes: It doesnt work if D believed it was advantageous to his position at the time but later was hurt him. People do not usually say things that could harm 123 0 Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or create such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a +CA allows an exception for societal interest. FRE doesnt. +FRE requires that in addition to unavailability, you have to show you been unable to procure declarants testimony by reasonable means. CA doesnt. +You can only admit statements against declarant but not the interest of party mentioned. I

circumstances clearly indicate the trustworthiness of the statement. The last sentence means that if a statement is exposes declarant to liability and vindicates the accused, you must have some corroborating evidence.

them so it is likely it is true when they say such things that could hurt them in terms of money, property, or criminal liability. It is an objective standard. If statements are made to exculpate an accused, it can qualify if it is corroborated. Profs Note: Compare against party admission. In murder cases and in all civil cases, a statement made by a person who believed he or she was about to die that relates to the cause of death is admissible.

reasonable man in his position would not have made the statement unless he believed it to be true.

am taking the coke for Williamson will be admitted against the declarant but not Williamson.

Hearsay Exception: Statement under belief of impending death.

804(b) (2)

The following is not excluded by the hearsay rule if the declarant is unavailable as a witness: In a prosecution for homicide or in a civil action, a statement made by a declarant while believing that the declarants death was imminent, concerning cause or circumstances of what the declarant believed to be impending death.

124 2

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his person knowledge and under a sense of immediately impending death.

No difference.

EXPERT TESTIMONY
What is It Opinion Test. By Lay Witnesses FR E 70 1 Text If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within scope of Explanation +Is it Rationally based (first hand knowledge)? +Is it helpful to the jurors (could the jurors have figured it out CE C 800 Text Lay Witnesses; opinion testimony. If a witness is not testify as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) rationally based on the perception of the witness; Explanation Same in FRE and CA.

R.702.

Testimony by experts

70 2

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

themselves) ? +Not scientific or technical +Specialized knowledge is very broad, encroaching on lay opinion +Expert can talk about outside sources (hearsay) that they base their opinion on; doesnt come in as substantive evidence but as basis for opinion

and (b) helpful to a clear understanding of his testimony. 801 Expert witnesses; opinion testimony. If a witness is testifying as an expert, his testimony in the form of an opinion is limited to: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) based on matter (including his special knowledge) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be replied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. Statement of basis of opinion. A witness testifying in the form of opinion may state on direct examination the reason for his opinion and the matter (including his special knowledge) upon which it is based, unless he is precluded by law from using such reasons as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which is opinion is based. -Opinion based on Improper Matter.

Bases of Opinion by Experts

70 3

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by expert in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion unless the court determines that their probative value in assisting the jury to evaluate the opinion substantially out weighs the prejudicial effects.

802 -803 -804

Opinion on Ultimate Issue

70 4

(a) Except as otherwise provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

+Expert can state that D doesnt have the mental required element for

805

The court man, and upon objection, shall exclude testimony in the form of an opinion that is based in who or in part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper. -Opinion based on opinion or statement of another (a) If a witness testifying as an expert testifies that his opinion is based in whole or in part upon the opinion or statement of another person, such other person may be called and examined by any adverse party as if under cross-examination concerning the opinion or statement. (b) This section is not applicable if the person upon whose opinion or statement the expert witness has relied is (1) a party, (2) a person identified with a party or (3) a witness who has testified in the action concerning the subject matter of the opinion or statement upon which the expert witness has relied. Opinion on Ultimate Issue. Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion as to whether the defendant did or did no have the mental state or condition constituting an element of the crime charged or of a defense there to. Such ultimate issues are matters for the trier of fact alone.

charge but can list the facts that lead him to conclude so. (Insanity cases) 720

by trier of fact.

721

Qualifications as an expert witness: (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. (b) A witness special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (a) Subject to subdivision (b), a witness testifying as an expert may be crossexamined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion. (b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not

be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs: (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admitted in evidence. (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits.

AUTHENTICATION 901(b) (2) You can have a non-expert testify to hand-writing if you have enough experience. If youre a secretary who has seen an attorneys signature for the last 10 years. But if youre an officer who observed a suspect sign a Miranda waiver once, no good. You can have the jury look at the hand writing and have them judge it.