EVIDENCE OUTLINE

RELEVANCE

 FRE: anything which makes any fact of consequence more or less

probable.
 CA: evidence having any tendency in reason to prove or disprove any
disputed fact.
 Normally, all relevant evidence is admissible (402)
 But not if the probative value is substantially outweighed by the dangers of
unfair prejudice, confusion of issues, or misleading the jury (403)
 4 questions
o Logical Relevance
 What is the evidence being offered to prove?
 Is that proposition provable in the case?
 Does the evidence help in proving that proposition?
o Legal Relevance
 Any legal reason to exclude this evidence?
o RULE 403
 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.

CHARACTER EVIDENCE

 CHARACTER EVIDENCE: Can’t introduce character evidence

to show that one acted in conformity with that character.
 FRE 404; CA 1101(a)
 EXCEPTIONS: don’t forget a LIMITING INSTRUCTION
o 404(b) other acts
o CA 1101-1104; 1108 (criminal sex case) 1109
(criminal domestic violence case) 1106 (loss
of consortium civil action)
 Manner of Proving Character
o FRE 405
 Opinion
 Reputation
 Specific acts only if person’s character is
an essential element of a charge, claim or
defense.
 Self defense doesn’t fit this
exception
 Relevant specific acts also allowable on
cross exam
 o CA EC 1100
 Opinion
 Reputation
 Specific acts UNLESS otherwise provided
by statute (ec 1102)
 Prop 8: doesn’t change the conformity
rules. It effects rules in criminal cases
unless the legislature specifically says
that it will not effect those rules.
 Specifically says it does not effect
rule 1103; which is a part of the
other conformity and relevance
rules.
 Criminal Defendant’s Character
o Mercy Rule and Victim’s Exception
 FRE 404(a)(1) and (2): opinion and
reputation only
 Defendant can offer evidence of his
pertinent character trait, and then
Prosecution can rebut the same.
 Defendant can offer Victim’s
character trait, and then
Prosecution can rebut with
evidence of the same trait of
Defendant or of Victim
 In a homicide case, prosecution
can rebut evidence of victim being
the aggressor with evidence of
victim’s character or peacefulness.
 CA 1102-1103: specific acts allowed
 Same
 Same but limited to character for
Violence of Defendant
 Defendant can offer victim’s
character trait, and then
prosecution can rebut with
evidence of the same trait of the
victim.
 Other acts Procedure of Admissibility
o FRE 404(b) proper purpose?
 Not for character or propensity
o FRE 402 logical relevance?
 Preliminary fact determination FRE
104(b)
o FRE 105: limiting instruction
 o FRE 403: legal relevance?
 Probative v. undue prejudice.
 Habit
 Regular response to a repeated specific situation
 FRE 406
o Habit of person or routine practice of
organization
o No corroboration needed
o Admissible to prove conduct in conformity with
the habit or routine
 CA EC 1105
o Habit or Custom
o Admissible to prove conduct in conformity with
the habit or custom.
 Victim’s Prior Sexual Conduct
 Rape Shield Law
o FRE 412
 Generally inadmissible
 In criminal case, admissible:
 To prove source of semen, injury
or physical evidence
 Sexual acts with D offered by d to
prove consent
 Sexual acts with D offered by
prosecution
 If exclusion would violate D’s
Constitutional Rights
 In Civil Case:
 IF probative substantially
outweighs danger of harm to
victim and unfair prejudice to any
party.
o CA EC 1103
 Generally inadmissible to prove consent.
 Admissible to prove V’s sexual conduct
with
 In criminal and certain civil cases
 Subsequent Remedial Measures
 FRE 407
o Inadmissible to prove negligence; culpable
conduct; product defect, design defect or need
for warning or instruction or Voluntary product
recall.
 o Admissible to prove another purpose such as:
ownership, control, or feasibility of
precautionary measures it controverted or
impeachment.
 CA 1151
o Inadmissible to prove negligence or culpable
conduct
o Does not apply to product liability cases
o Admissible for to prove another purpose or for
impeachment.
 Compromise and Offers to compromise and Conduct or
Statements during such Negotiations
 Fre 408, 409
o Inadmissible to prove liability for, invalidity of,
or amount of claim or to impeach via a prior
inconsistent statement.
o Admissible for other purposes, witness’ bias;
negative undue delay contention; proving an
effort to obstruct criminal investigation or
prosecution.
 CA EC 1152, 1154, 1160
o Inadmissible to prove liability.
o Admissible for other purposes
 Criminal Please Negotiations
 FRE 410
o Withdrawn guilty plea
o Nolo contender plea
o Statements made in the course of plea
negotiations
o All inadmissible in any action
o Inadmissible to impeach
 CA EC 1153, 1153.5
o Withdrawn guilty plea
o Offer to plead guilty
o Offer for civil resolution of criminal matter
o All inadmissible in ANY action

Admissible to IMPEACH

 In general, evidence of a person’s character is not admissible to prove that he

acted in conformity therewith on a particular occasion.
o Essential Element: if the general character is an essential element of
the case.
 Then specific acts, opinion or reputation are admissible!
o Other crimes and bad acts evidence in CRIMINAL cases:
  may not be introduced for purpose of proving conformity!
 Can be used to prove an element of the crime charged
and other purposes (404b)
o Motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or
accident.
 Need NOT have led to a conviction.
 Preponderance of the evidence.
 Must STILL apply 403
o Evidence of criminal defendant’s GOOD CHARACTER
 Evidence by a criminal defendant of good character is allowed
by all courts.
 Narrow favorable trait must be RELEVANT to the crime.
 Proven by reputation evidence, and opinion.
 DIFFERS FROM CALIFORNIA: ALLOWS SPECIFIC
INSTANCES.
 Prosecution may then rebut this evidence if offered by the
defendant.
 If the prosecutor cross examines D then they can bring
in SPECIFIC INSTANCES if:
o The prosecutor has a good faith basis for
believing that D really did commit the specific
bad act.
o Bad act is RELEVANT to the specific character
trait testified to by the D.
 Limited to cross-examination
o MAY NOT INCLUDE EXTRINSIC EVIDENCE.
o Character of Victim
 V’s Violent Character
 Defendant in a homicide or assault case who claims
victim was the first aggressor may introduce evidence
that the victim had a violent character.
o REPUTATION OR OPINION
 Rebuttal by Prosecution:
o May rebut by showing the victim’s peaceable
character.
 If the defendant claims that the victim
was the first aggressor, without even
proving victim’s general character for
violence, prosecution may still introduce
peaceable nature of victim.
 RAPE
 Rape Shield Statutes
o Disallows reputation or opinion evidence
concerning the victim’s past sexual behavior.
 o D CAN offer evidence of specific instances that V
had prior sexual relations but with D only.
 Also applies in Civil cases.
o Prosecutions evidence of criminal defendant’s bad character
 If a criminal defendant puts on evidence that C has a particular
bad character trait, the prosecution is then automatically
entitled to put on evidence that the defendant has that SAME
BAD CHARACTER TRAIT.
 Only where admitted under 404(a)(2)
o First aggressor rule and mercy rule.
 DIFFERENT THEN CA:
 First aggressor rule: does NOT open the door to rebut
with evidence of defendant’s violent nature, can only
rebut with the peaceable nature of the Victim.

Methods of Proving Character: Reputation, Opinion and Proof Of Specific Acts

 Whenever proof of a character trait is allowed, FRE let that proof be by either
reputation or opinion testimony.
o IN CALIFORNIA: ALSO INCLUDES SPECIFIC INSTANCES.
o D’s good character evidence
 D opens the door.
 Then on cross-exam specific acts can be introduced to
D’s character witnesses.
o Good faith
o No extrinsic evidence.
 Asking one of your own witnesses as to
the character of the Defendant’s character
is not considered specific acts, that’s
considered extrinsic evidence. The
specific acts can only be asked to the
defendant’s witness who testifies as to the
defendant’s character.
o Character of Victim
 Reputation or opinion
 On cross: specific acts allowed.
o Specific acts can be used when D’s prior crimes or bad acts are for
“some other purpose”

Past Sexual Assault of Child Molestation by D

 Evidence that D has committed a sexual assault in the past is admissible and
may be considered on any relevant matter.
o Child molestation; civil suits:
 Allow:
 Proof that D previously molested a child.
  Proof of D’s prior sexual assaults or child molestations
to be introduced in civil proceedings where P claims D
sexually assaulted or molested P.
 No Balancing
 No Conviction needed
 No Time Limit

Habit and Custom

 Generally allowable: Evidence of a person’s habit is admissible in most courts

to show that he followed this habit on a particular occasion. Distinguished
from Character Traits.
o Three Factors to Consider:
 Specificity
 Regularity
 Unreflective Behavior
o FRE: no eyewitness needed.
o Business Practice: all courts allow evidence of routine practice of an
organization to show that that practice was followed on a particular
occasion.

Similar Happenings:

 Evidence that similar happenings have occurred in the past is generally

allowed.
o There must be a SUBSTANTIAL SIMILARITY between the past similar
happening and the event under litigation.

Subsequent Remedial Measures

 Generally not allowed to show that a party was negligent or conscious of

being at fault.
o Other purposes:
 May be used to rebut the D’s claim that there was no sager way
to handle the situation.
 Ownership/Control.
o Applied to products liability.

Liability Insurance

 Evidence that a person did or did not carry liability insurance is NEVER
admissible on the issue of whether he acted negligently.

Settlements and Plea Bargains

 Settlements
o May not be admitted to claim’s validity.
 Collateral admissions of fact: not admissible under FRE
  Guilty Pleas
o May not be admitted to prove that D is guilty.
o Withdrawn plea may not be admitted.
 Offer to pay medical expenses
o May not be admitted to show that party’s liability for the accident that
caused injury.
 Only the fact of PAYMENT is inadmissible.

EXAMINATION AND IMPEACHMENT OF WITNESSES

 Refreshing Recollection
o NOT considered evidence at all.
 Impeachment
o 5 main ways of impeaching a witness. Any party may impeach any
witness.
 Attacking W’s general character (past crimes, past bad acts or
bad reputation)
 Prior criminal conviction
o Crimen Falsi
 May always be used to impeach W,
regardless of misdemeanor or felony and
no weighing needed under 403
o Felony
 Witness is the accused:
 Must be weighed NOT by 403: “the
probative value of admitting
this evidence OUTWEIGHS its
prejudicial effect to the
accused.”
 If the witness is NOT the accused
 Weighed by 403.
o Time limit: 10 years.
o Pardons: cannot be included.
 Prior Bad Acts
o Has NOT led to a criminal conviction
o Only bad acts that are probative of
TRUTHFULNESS may be asked about.
o Can use specific instances in FRE but NOT in
CA!
o No extrinsic evidence allowed.
o Good faith basis.
 Showing a prior inconsistent statement
 In FRE no foundation is needed but there needs to be
some opportunity for the Witness to explain
themselves, they must be “on call” but the questioning
 party does not themselves have to call the witness back
to the stand so the witness can rehabilitate their
testimony.
 Special rules limit the ability to prove W made a prior
inconsistent statement by “extrinsic evidence”
o Collateral: Not allowed if it only involved
collateral matters.
 It must relate to a MATERIAL issue in the
case.
o Extrinsic evidence only if the inconsistency
between the prior statement and the trial
testimony is material.
 Cast doubts on W’s veracity.
 Showing that W is biased: no FRE
 Always admissible
 NEVER COLLATERAL
 May be shown by use of extrinsic evidence.
 Showing that W has a sensory or mental defect
 Generally allowed: may be impeached by showing
capacity to observe, remember or narrate correctly.
 By other evidence that contradicts W’s testimony: NO FRE
 Collateral issue rule
o Allowed: prior criminal convictions; bad
character for truthfulness; bias; or sensory or
mental defect that prevents other witness from
observing, remembering or narrating events
correctly.
 Rehabilitating Impeached Witness
o May not offer evidence supporting witness’ credibility unless it
has first been attacked.
o Prior consistent Statement
 Proponent who wants to use a prior consistent statement must
show that the prior statement was made before an alleged
motive to fabricate or improper influence arose.
 Credibility: Bias, interest, motive, prior inconsistent statements,
contradictory facts, prior convictions, character for truthfulness, specific acts
probative of untruthfulness, psychiatric condition, treatises (only for
experts) impeaching out of court declarant.
 FRE 607
 CA EC 780
 Collateral Matter: extrinsic evidence ban on evidence of
collateral matter
 If impeaching evidence is admissible ONLY to contradict
the witness’ testimony
 Purpose of the rule
 FRE 608
 Opinion or reputation for truthfulness or untruthfulness
 Specific instances may not be proved by extrinsic
evidence
 Court may allow cross-exam re. specific instances
probative or truthfulness or untruthfulness.
 Good character of witness inadmissible until AFTER bad
character has been admitted.
 CA EC 786-87, 790
o Only honesty or veracity and their opposites.
o Specific instances INADMISSIBLE in civil cases
 No such limitation in CRIMINAL cases per
prop. 8
o Good character of witness inadmissible until
after bad character has been admitted (no such
limitation in criminal cases per prop. 8)
 FRE 609
o Any felony:
 If prob. Outweighs prej. For D.
 In favor of exclusion
 FRE 403 for non-D witness.
o Any conviction of any crime involving dishonesty
or false statement (crimen falsi; no 403)
o 10 year limit unless court finds probative
substantially outweighs prejudicial effect.
o Convictions admissible pending appeal
o Juvenile adjudications generally inadmissible.
 CA EC 788
o Any felony conviction (or misdemeanor doesn’t
matter now because of PROP 8)
o Limited to felonies involving moral turpitude
o Subject to EC 352
o Conduct underlying misdemeanor conviction
involving moral turpitude admissible per Prop. 8
 Fre 613
o Queen’s case rule abrogated
o Extrinsic evidence of prior inconsistent
statement inadmissible unless
 Witness is given the opportunity to
explain
 Or the interest of justice otherwise
require
o Prior consistent statement
  See FRE 801(d)(1)(B) to rebut charge or
recent fabrication or improper influence
or motive.
 CA EC 770
o Extrinsic evidence of Prior Inconsistent
statement inadmissible unless
 Witness is given the opportunity to
explain
 Witness has not been excused
 Or the interest of justice otherwise
require
o Prior consistent statement
 See ec 791 for similar limitations
 If made before a prior inconsistent
statement
o Prop 8 effect? No CA ruling.

REAL AND DEMONSTRATIVE EVIDENCE INCLUDING WRITINGS

 Authentication: Before a tangible item can be introduced into evidence, it

must be authenticated. That is, there must be a showing that the item is what
its proponent claims it to be. An object offered into evidence will not be
presumed to be authentic. Proponent bears the burden of establishing that
the object is what he says it is. There must be a logical nexus between the
evidence and the point on which it is offered ( relevance).
o Real Evidence: If the object is real evidence, authentication means
showing that the object is the one that was involved.
 Foundation: relates to proving that the evidence is indeed the
object used in the underlying event.
 Direct v. Circumstantial: Direct evidence will almost always
be admitted unless admission would involve substantial
prejudice or other strong countervailing consideration. When
circumstantial evidence is offered the trial judge has broader
discretion to conclude that waste of time, confusion or mild
prejudice outweigh the probative value.
 Authentication:
 Ready identifiability: witness merely testifies that the
object he originally saw has a specific unique
characteristic that the item in court also has.
 Chain of Custody: every link in the chain of custody
must explain what he did with it if there is no unique
characteristic.
o Demonstrative Evidence: If the evidence is demonstrative,
authentication usually means showing that the object fairly
represents or illustrates what it is claimed to represent or illustrate.
Doesn’t need to be essential, can be USEFUL to jury.
  Foundation: does not involve showing that the object was the
one used in the underlying event. Rather, the foundation
generally involves showing that the demonstrative object fairly
represents of illustrates what it is alleged to illustrate.
 Best Evidence Rule: States that when the terms of a writing are being
proven, the original writing must be produced unless it is shown to be
unavailable. (not to prove if a writing exists, was executed, or delivered.)
o Excuses for non production
 Loss or destruction
 Proponent must only prove they made all reasonable
avenues of search
 Cannot be bad faith loss
 Inconvenience
 Possession by third person
 Original in opponents possession
 Significance of notice: adversary party can either
produce document or waive any complaint to use copy
or oral testimony in court. Must choose one or the other.
 Public Records
o A duplicate is admissible unless a genuine question is raised as to the
authenticity of the original, or it would be unfair to admit the
duplicate.
 For example a copy of a document is admissible unless there is
a genuine question raised as to the authenticity.
o Collateral Writings: If the writing is not closely related to a
controlling issue, the BER does no apply.
o Excuses for non-production: BER only applies if the original is
available, or is unavailable due to the serious fault of the proponent.
o Three Main Components:
 Original Document
 Prove terms of writing
 Excuse
o Incidental Record: the fact that there happens to be a writing
memorializing a transaction does not mean that the transaction can
only be proved by introduction of the writing.
 Herzig v. Swift
 Where one isn’t trying to prove the contents of the
books and records, and just proving the earnings of the
partnership, the books and records were merely
incidental recordations of those earnings and oral
testimony should have been allowed.
 Transcript: A person’s prior testimony can generally be
proved by an oral account of a witness who heard the
testimony, even if a transcript exists. Courts reason that what
 is being proved is the prior oral testimony, and testimony is an
incidental recordation.
 Photos: live testimony about the object if event is allowed in
lieu of the photograph, xray etc., since the photograph or other
recordation is merely an incidental record an it’s contents are
not really being proved
 Not same for proving contents of a photograph
o Summaries: allowed if original writings are so voluminous that they
cannot be conveniently be introduced into evidence and examined in
court. Must be sponsored by a witness.
 Allows summaries of photographs as well.
 Judge-Jury Allocation: In determining the authenticity of an item of
evidence, both the judge and jury play a role. It is not up to the judge to
decide whether the item is what it’s proponent claims it to be; that job is for
the jury. It is up to the judge to decide whether there is some evidence from
which a jury could reasonably find that the item is what it is claimed to be.
 Authentification of writings
o No presumption of authenticity
o Signature not automatically believed
 Non-experts can identify handwriting based on familiarity not
acquired for purposes of the litigation.
 If an EXPERT offers evidence of this nature, it must pass the
scientific-reliability standards of Daubert.
 Exemplars can be offered and jury can decide whether the
handwriting is the same.
o Direct testimony can be used to authenticate a document.
o US v. Dockins
 Authentification of Telephone Conversations
o Outgoing
 Someone mad a call to a number assigned by the phone
company to a particular person
 The circumstances show that the person who talked on the
other end was in fact the person the caller was trying to reach.
o Incoming
 Must be a showing that the caller was indeed the person that
the proponent of the phone call evidence claims him to have
been.
o Self identification not enough
 Recognize the voice
 Displays knowledge that only one would have had
 Phone company records
 Self Authenticating Documents: only means the proponent does not need
to present extrinsic evidence of authenticity.
o Official publications
o Newspapers and Periodicals
 o Trade inscription
 Green Giant label on can counts under Federal, not
common law.
o Business Records
 Avoid authentication by:
o Request for admission
o Stipulation
 Federal Rules: No hierarchy of evidence “next best evidence”
o DIFFERENT IN CA: adopts the MAJORITY view that there is a next
best evidence rule.
 Evidence to support finding that the item is what its proponent claims it is
 Judge determines the preliminary fact of whether a reasonable juror could
find the item to be what the proponent claims it is
 Once authentication is shown, other issues of admissibility remain leg
hearsay, relevance, FRE 403, CA 352, etc.

OPINIONS, EXPERTS, AND SCIENTIFIC EVIDENCE

 Lay Opinions:
o First Hand Knowledge Required. FRE 602.
o If witness is not testifying as an expert his testimony in the form of
opinions or inferences is limited to those opinions or inferences which
are rationally based on the perception of the witness and helpful to a
clear understanding of his testimony or the determination of a fact in
issue and not based on scientific technical or other specialized
knowledge.
 Opinion allowed if it’s HELPFUL to the jury.
o No expert testimony in lay clothing.
o Testimony in the form of an opinion or inference is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact. Can’t testify as to:
 How the case should be decided
 Questions of law
 Legal Criteria.
 Expert Witnesses
o One whose specialized knowledge will be helpful to the jury in
deciding the case correctly.
o Furnishes an opinion about inferences that should be drawn from a
set of complex facts that the trier would not otherwise be capable of
interpreting easily and correctly.
o Will be called upon to state general scientific principles of his
specialty.
o Five Requirements:
  Must be the case that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.
 Witness must be qualified as an expert by knowledge, skill,
experience, training or education.
 Must be based upon sufficient facts or data
 Testimony must be the product of reliable principles and
methods and
 Applies to non-scientific expert testimony as well.
 The witness ,must have applied these principles and methods
reliably to the facts of the case.
o It is up to the trial judge to decide whether the proposed witness
should be allowed to testify as an expert.
o Basis of knowledge
 Personal knowledge
 Observation of prior evidence
 Hypothetical Questions
 FRE: The expert may testify in terms of opinion or
inference and give his reasons therefore without prior
disclosure of the underlying facts or data, unless the
court requires otherwise.
 Doesn’t have to based on evidence that is admissible. The
facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence in order for the
opinion or inference to be admitted.
 Ex. An expert relies on a particular source of
information, if regularly relied upon by experts like
the witness, the fact it would be inadmissible
hearsay is irrelevant. US v. Brown
o Cross Examination of an Expert
 Bias: try to find bias in the expert’s testimony.
 Different assumptions: probe the factual data on which the
expert’s opinion is based.
 Learned treatises: impeach the witness
 Must prove it’s a standard authority from witness first.
o Daubert, FRE 702, Exclusion of Unreliable Testimony
 Special Rule for Scientific Evidence: must be helpful to the
jury’s understanding of the case.
 Reliability requirements:
 Expert testimony must be based upon sufficient facts or
data
  Such testimony be the product of reliable principles and
methods
o Scientifically valid
o Derived from scientific method
o Good science
o Reliable foundation
 That the witness have applied the principles and
methods reliably to the facts of the case.
o Differs from Frye test: only scientific evidence
that was generally accepted could be admitted.
 CA uses the Kelly-Frye test!!!!
 Relevancy prong: most be relevant, sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual
dispute. Issue of “fit”
 Role of the judge: Determine if the methodology used is
reliable, NOT if the results are reliable.
 Abuse of discretion standard should be used in
evaluating a judge’s procedure.
 Kumho: DAubert standard doesn’t just apply to scientific
testimony, but to all expert testimony.
 702 in response to Daubert: three part test
 testimony must be based on sufficient facts or data
 product of reliable principles and methods
o lie detector test no reliable
o hypnosis not reliable
 witness has applied the principles and moethods
reliably to the facts of the case.
 Expert Testimony and Risk of Waiver of Work Product Privilege
o Attorney’s privileged documents used to Refresh Recollection of
expert witness before or during testimony= Waiver of Work-Product
privilege?
 FRE 612 and Ca. Ev. 771
 Opposing party can inspect, cross-examine on it and introduce
in evidence in evidence pertinent parts.
o Avoid problem by using Non-Testimonial expert.
 But what happens when testifying expert has reviewed the
non-testimonial expert’s report.
 Daubert: applies to scientific techniques and procedure.
o Non exclusive factors to consider
 Whether the theory or technique can be and has been tested.
 Whether the theory or technique has been subjected to peer
review and publication
 The known or potential error rate
 The existence and maintenance of standards controlling the
techniques operation
  General acceptance in the relevant scientific community.
o Scientific Evidence and Expertise: Particular Types
 Mental Condition of defendant:
 FRE 704: testimony is not objectionable because it
embraces an ultimate issue to be decided by the trier of
fact. No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal
case may state an opinion or inference as to whether
the defendant did or did not have the mental state or
condition constituting an element of the crime charged
or of a defense thereto. Such ultimate issues are matters
for the trier of fact alone.
o Not permitted to testify that defendant was
unable to appreciate the wrongfulness of his
conduct
 Experts to analyze handwriting samples usually not
acceptable US v. Saeliee
 No scientific principles to base the analysis on.
 Reliability of eyewitness testimony
 Daubert standard probably makes expert testimony
about the unreliability of eyewitness it’s more likely to
be admitted.
 Class notes:
 LAY OPINION
o FRE 701
 Only opinions that are:
 Rationally based on perception of witness
o Personal knowledge
 Helpful for clear understanding of testimony or
determination of fact
o CA EV 800
 EXPERT OPINION
o FRE 702, CA EC 720
o Qualification
o FRE 703-705
 Can be based on info perceived or made known to expert
 Info need not be admissible in evidence
 Balancing test before jury hears such evidence
 Info must be type that reasonably relied upon by experts in the
field (CA 801)
 Can be based on opinion of other expert
 Can be opinion on ultimate factual issue (FRE 704- CA 805)
 Basis of Opinion need no precede Opinion (FRE 705 and CA
802)
o CRIMINAL CASE
  No expert opinion permitted re. whether criminal defendant
had or did not have a mental state or condition which is an
element of the crime or of a defense thereto. FRE
 Any expert testifying about a criminal D’s mental illness,
mental disorder or mental defect shall not testify as to whether
D had or did not have a required mental state. Cal Pen code 29
 Evidence of mental illness, mental disorder or mental defect
shall not be admitted to show or negate the capacity to form
any mental state. NO diminished capacity defense. PC 28
 Expert cannot express an opinion as to Defendant’s guilt.
 SCIENTIFIC EVIDENCE
o FRE 702: Daubert
 Supersedes Frye test
 Not limited to scientific knowledge
 Applies also to technical or other specialized knowledge
 Cannot use FRE 701 to evade 702 daubert reliability test.
 Includes technical and specialized knowledge.
o CA
 Kelly frye applies only as to new novel or experimental
scientific principles or techniques.
 Non jelly hearing:
 Basis is matter relied on experts in the field
 Expert followed accepted protocols and methodology.
o Daubert & FRE 702
 Applies to ALL such expert testimony:
 Not just novel ones
 Not just scientific based ones. It also applies to technical
or other specialized knowledge.
o California
 Kelly-Frye applies ONLY as to new, novel or experimental
scientific principles or techniques
 P v. Stoll (1989) 49 cal. 3d 1136
 Non-Kelly hearing:
 Basis is matter relied on experts in the field
 Expert followed accepted protocols and methodology.
o FRE 702 after Daubert
 Not limited to scientific knowledge
 Applies also to technical or other specialized knowledge
 Kumho tire co. v. Carmichael
 Cannot use FRE 701 to evade 7-2/Daubert reliability
requirement
 Judge is the gatekeeper
 Preliminary fact determination FRE 104(a)
 Party offering the expert has the BOP of Relevance and
Reliability.
 o CA after Daubert
 Kelly/Frye still applies
 Kelly requires general acceptance by a typical cross-section of
the relevant scientific community.
 General acceptance means a consensus drawn from typical
cross-section of the relevant, qualified scientific community.
 Consensus=a clear majority.
 Testimony of a single witness is not enough to satisfy Kelly.
 Until the above is demonstrated, testimony of a police officer
who administer the test is inadequate for Kelly purposes.
 Once Kelly standard is met per published appellate opinion
precedent, Kelly is no longer required.

BURDEN OF PROOF, PRESUMPTIONS, AND OTHER PROCEDURAL ISSUES

 Two Burdens:
o Burden of Production
 Obligation to come forward with some evidence that
something exists. the burden of going forward.
 If a party does not satisfy this burden of production the
court will decide the issue against him as a matter of
law.
o Burden of Persuasion:
 If at the close of the evidence the jury cannot decide whether A
has been established with the relevant certainty
(preponderance of the evidence, beyond a reasonable doubt)
the jury must find against that party with the burden.
o Civil Cases:
 Burden of production and persuasion usually on the plaintiff.
 Judge decides if the party bearing the burden of production
has done so by a preponderance of the evidence.
 Dyer v. MacDougal: To meet the production burden a plaintiff
must come up with SOME affirmative evidence for the
proposition on which he bears the burden.
 it is not enough to attack the credibility of the
adversarial witnesses.
 Burden of persuasion: The existence of the contested fact is
more probable than its non-existence.
 Purely statistical evidence is not enough
o Smith v. Rapid Transit
o Criminal Cases:
 State has the burden of production and persuasion with
respect to all elements of the crime
 Defendant always has the burden of production and often the
burden of persuasion with respect to an affirmative defense.
  If an element of the affirmative defense is an essential
element of the crime the burden of production and
persuasion remains on the prosecution.

PRESUMPTIONS

 Refers to the relationship between a basic fact (B) and a presumed fact (P)
And when fact P can be presumed by fact B it means that once B is establish,
P is established or rendered more likely.
 Effect in Civil Case:
o Thayer
 Majority
 Shift the burden of Production.
 Once the opponent discharges his production burden by
coming up with some evidence showing the non-existence of
the presumed fact, the presumption disappears from the case
and the jury decides the issue as if the presumption never
existed.
 Bursting Bubble
 Jury still allowed to make inference of the presumed fact
from the basic fact; permissive inference not mandatory
inference.
o Morgan
 Minority view
 Presumption shifts the burden of production AND burden of
persuasion.
o FRE 301:
 In all civil actions and proceedings not otherwise provided for
by Act of Congress or by these rules, a presumption imposes on
the party against whom it is directed the burden of going
forward with evidence to rebut or meet the presumption, but
does not shift to such party the burden of proof in the sense of
the risk of nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast.
 Bursting bubble view.
 Constitutionality of Affirmative Defenses
o An instruction that might be interpreted as shifting to a defendant the
burden of persuasion on any element of the crime is unconstitutional
 Sandstorm v. Montana
 Presumptions: proof of a designated fact (basic fact)
establishes the existence of another fact (presumed fact).
 Thayer: bursting bubble
 Inference: ALWAYS permissive EC 600 (b)
 A logical deduction from another fact or set of facts.
 PRESUMPTION mandatory EC 600(a)
  One basic fact is proved, the law makes an assumption
of a fact mandatory.
 A legal device that affects the burden of persuasion or
the burden of producing evidence.
o Types of Presumptions
 Conclusive Presumption:
 Disguised change in substantive law.
o Legitimacy of child born in wedlock.
 Thayer Rebuttable presumption
 Shifts burden of producing evidence (BPE)
o Bursting Bubble Theory
o Expedite the trial process.
 Morgan Rebuttable presumption
 Shifts burden of persuasion (BOP)
o Also known as the burden of proof
o Affecting the Burden of Persuasion
 The obligation of a party to establish the requisite degree of
belief concerning a fact in the mind of the trier of fact.
 Criminal case: beyond a reasonable doubt
 Civil: Preponderance of the evidence
 Probate, etc: Clear and Convincing
 Warrant: Probable Cause
o Affecting the Burden of Producing Evidence
 The obligation of a party to introduce evidence sufficient to
avoid a ruling against him on the issue.
 FRE 301
o Civil Actions ONLY
 Affects the Burden of producing evidence
 Does NOT shift the burden of proof
 Where State Law involved, effect of presumption according to
that state law.
 FRE 302
o ***Whoever had the burden of persuasion retains that burden of
persuasion throughout****
 CA E.C. 500-660
o 500 Burden of Proof on party asserting claim for relief or defense.
o Assumption of fact that the law requires from another fact. It is not
evidence. (600).
 In CA the burden of insanity is on the defense and it’s by a preponderance of
the evidence.
 Hypothetical one
o Basic fact: ownership Presumed Fact: Agency.
 The driver of a car is the agent of the owner.
 California Evidence Rebuttable Presumptions
 o Burden of Proof: crime, negligence, insanity
o Burden of producing evidence: initially on party with burden of
proof.
o Presumption effecting BPE is to facilitate the determination of the
action.
o Presumption affecting BOP is for implementing some public policy.
 JUDGE-JURY ALLOCATION
o Becomes complicated when admissibility of a piece of evidence turns
on an issue of FACT.
o Competence: When an objection to admissibility is based on a
technical exclusionary rule, any factual question needed to decide that
objection belongs solely to the judge.
 FRE 104.
o Issues if conditional relevance should be left to the JURY.

JUDICIAL NOTICE

 Judge accepts a fact as true even though no evidence to prove it has been
offered.
o If the case is a civil one being tried to a jury the judge after taking
judicial notice, will instruct the jury that it must find the fact.
 Adjudicative facts: those facts which relate to the particular event
o Can take judicial notice only if it is indisputable.
 Legislative facts: more general facts that do no concern the immediate
parties.
 FRE 201:
o Only adjudicative facts
 Generally known within the community
 Capable of accurate and ready determination by the use of
sources whose accuracy cannot reasonably be questioned.
o Civil cases: judicial notice conclusive
o Criminal: no conclusive; taking away the jury’s right to make their
own determination of the fact would violate the defendant’s
constitutional right to a jury trial.
o Silent as to legislative facts
 These facts are conclusive in civil and criminal trials.

COMPETENCY OF WITNESSES

 FRE 601-605
 Every person is competent except as otherwise
provided in FREs
 Personal knowledge requirement
 Oath or affirmation
 Interpreter. Same rules as experts.
  Presiding judge may not be witness in that trial
 CA EC 700-703
 General rule same
 Disqualified if incapable:
o Of expressing oneself so as to be understood
o Of understanding duty to tell the truth
 Personal knowledge requirement
 Oath or affirmation
 HYPNOSIS
 CA EX 795 (no FRE counterpart) Criminal cases only
 Hypnotically refreshed memory inadmissible
o Per se rule
 Pre-hypnosis remembered and related facts are
admissible if procedural guidelines are followed.
 Burden of persuasion on proponent to prove by clear
and convincing evidence that the hypnosis did not so
affect the witness as to render:
o Pre hypnosis recollection unreliable or
o Substantially impair the ability to cross-exam on
the pre-hypnosis recollection
 Civil cases: P v. Shirley bars post-hypnotic memory but
does not
 LIE DETECTOR TESTS
 Exclude polygraph tests after adopting Daubert because
of they are scientifically unreliable.