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Evidence, Fall 2010 ² Prof. Levenson

Preliminary Matters of Importance

1.c FRE applies to criminal & civil trials, not prelim Qs of fact; grand jury; misc. proceedings (sentencing; bail hearing) (1101)
2.c Purpose of FRE: (1) Fair administration; (2) No unjust cost, delay; (3) Find truth & just proceedings
3.c Judge decides: (1) Admissibility of evidence decided by Judge (104); (2) Mode, control, scope of interrogation (611).
4.c Judge must admit evidence on a limited basis, if admissible for one party but not for another
5.c Errors by Judges: Harmless; Reversible; Plain; Constitutional
6.c Preserving Objections: Party must object + must offer proof (103)

Admissibility & Relevancy: All relevant evidence is admissible; Non-relevant evidence is inadmissible (402)
1.c Is it relevant? (401) ² Logical Relevancy
: Relevant = Tending to establish point for which evidence offered
: Material = Bears on issue in the case; Of consequence
: Both direct & circumstantial evidence are OK
: FRE = Any tendency (no dispute needed); Cal = Tendency to prove/disprove any disputed fact

2.c Does unfair prejudice outweigh probative value? (403) ² Pragmatic Relevancy [Favors admission]
: Substantive reasons for exclusion: Unfair prejudice; Confusion of issues; Mislead jury (403)
: Procedural reasons for exclusion: Undue delay; Waste of time; Needless presentation of cumulative facts
: Stipulated facts are still admissible, though low probative value (Old Chief; Chappel)

3.c Judge·s Options

: Tailor evidence to keep it fair
: Limiting instruction can limit prejudice & raise probative value
: Make more probative thru Rule of Completeness: Adverse party requests ´any other partµ of admitted statement (106)
: Conditional relevancy: Offer of evidence, subject to further evidence that makes earlier evidence relevant
: Probabilistic evidence: Admit if supported by underlying evid & doesn·t usurp jury·s function; deferred cross-x, a problem

Hearsay: Inadmissible, unless with exception (802)³can·t cross-x, can·t see demeanor, not under oath, risk of inaccuracy
1.c Definition [801] (Cal.]
(a)c Statement: Assertion
(1)c Oral or Written assertion: Direct declaration & Indirect (Implied, Assumed) declaration (Check)
(2)c Signals
(3)c Assertive conduct: Non-verbal conduct intended as an assertion (Falknor: Yes; Baron Parke: No)
* Non-complaint or Non-compliance is not an assertion (Cain)
* Totality of circumstance test: Motivation? Planned? Incentive for distortion?
: Machines & Animals: Non-assertive statement/conduct
: Computers: Can be assertive statement/conduct because humans input info
(b)c Not made by the declarant while testifying at trial or hearing
(c)c Offered in evidence to prove the truth of the matter asserted
2.c Hearsay may be admitted for Non-hearsay Purposes (not for truth of statement, unless exception exists or 403)
(a)c Impeachment
(1)c Can only be prior statement by witness on stand & cross-x right now
(2)c Must be inconsistent with witness·s testimony given earlier at this trial
(3)c If earlier statement was under oath, admissible for impeachment + proof of truth of asserted matter
(4)c If earlier statement was not under oath, admissible only for impeachment
* CAL 1235: Any prior inconsistent stmt admissible for proof of truth; no oath or proceeding req·t
(b)c Verbal acts (Operative fact): Has independent legal significance such as criminal act, contractual act, etc.
(c)c Verbal object/marker: Requires a 2d testimony to establish connection
(d)c Effect on listener: To show knowledge, warning, notice, emotion, or acted (un)reasonably
(e)c Declarant·s state of mind: To show knowledge, emotion, sanity, etc.
(f)c Declarant·s memory or belief
(1)c Details of description is what is relevant
(2)c 2d witnesses needed to establish that memory/belief is correct
(g)c Lie: Goes directly against ´truth of the matterµ aspect, thus admissible
(h)c Willingness to say
(1)c Truthfulness of statement irrelevant
(2)c Points to reliable, non-culpable state of mind
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Not Hearsay ² 801(d) ² Admissible for proof of the truth of the matter
1.c Prior Statement by Witness: Witness on Stand now + Subject to Cross-X + Regarding prior statement
(a)c Inconsistent (Different, not Opposite; Inc. feigned memory; Not feigned memory: ?)
(1)c Made under oath
: If not under oath, admissible only for impeachment purpose (613)
(2)c Subject to penalty of perjury
(3)c Given at trial, hearing, proceeding, or deposition
: YES: Agency hearing; grand jury; prelim hearings
: NO: Affidavits (Fed Cts; some cts, OK); Stationhouse statement
* CAL 1235: Any prior inconsistent stmt admissible for proof of truth; no oath or proceeding req·t
(b)c Consistent
(1)c To rebut an express/implied charge of recent fabrication or improper influence or motive against declarant
: Statement must be made before motive to fabricate (Tome)
* CAL 1236, 791: PCS admissible only if:
(1) Inconsistent statement already admitted to attack;
(2) PCS made before motive to fabricate
(c)c Identification
(1)c ID of a person (such as: Line-up; Photospread; Mug shot ID; Composite sketch (Motta); Voice ID)
(2)c ID made after perceiving the person
* May be offered by another person as long as perceiving person available for cross-x
* Witness may have faulty/hazy memory as long as he can testify to it in some way (Owens)
* In-court ID may be wrong
* Another approach could be: Verbal Marker
2.c Admission: Statement Offered Against Declarant
(a)c Individual admission
(1)c Declarant·s Own Statement
(2)c Either Individual or Representative capacity
* Can only be used against the declarant; Limiting instruction cures problem involving other parties
* Crim (Bruton): Co-D·s admission can·t be used v. Co-D, even with limiting instruction, but maybe with redaction
(b)c Adoptive/Tacit admission (Hoosier³silent when GF talks re robbery; Doyle) (Judge decides whether adopted, 104)
(1)c Someone makes a statement
(2)c Party is silent, manifesting adoption or belief in the truth of the statement
(3)c Test: Total circumstances ± ´Would probable human behavior have been to promptly deny?µ; Knowingly agreed?
(4)c Factors: (1) Did declarant hear? (2) Matter w/in knowledge? (3) Likely to reply in situation? (4) Prevented from replying?
(5) Speaker someone usually ignored? (6) Const right not to respond at issue?
* Crim (Doyle): (1) Jenkins³silence is admission; (2) Miranda; (3) Doyle: Post-Mirandized silence not admission
(c)c Authorized admission
(1)c Formal authorization given to another (such as: real est broker; talent agent; lawyer making K; corporate prez)
(2)c Offered against declarant to whom statement ultimately attributed
(d)c Employee/Agent admission (Mahlandt³EE·s statement re wolf bite not admitted)
(1)c Agent or servant: Agency law; Employee; Ind Contractor, if party adopted; NOT Gov·t EEs (modern push to allow)
(2)c Matter within scope of agency or employment
(3)c Statement made during existence of relationship
* Words can·t be sole evidence; Needs additional evidence showing actual employment & its scope
(e)c Co-conspirator admission (Boujaily³statement alone cannot establish conspiracy)
(1)c Members of the same conspiracy
(2)c During course of conspiracy
(3)c In furtherance of conspiracy
* Actual conspiracy needed: Judge decides in James hearing (POE req·t)
* Statement alone is NOT enough to show conspiracy (Bourjaily) ² Requires additional, independent evidence
* Statement MUST be made as part of conspiracy. If party left, remaining parties· words can·t be used v. him.
* Charge of conspiracy NOT necessary
* What Counts as Admission? (Fed Ct accepts guilty pleas & other pleadings more than State Cts)
(1) Pleadings (inc. Guilty plea in related civil case), Interrogatories; States may limit by statute, e.g., traffic violation
(2) Response to Request for Admission = Admission only for that action
(3) NOT Nolo Contendre

* NOT Required: (1) First-hand knowledge; (2) Specific content; (3) Vs. own interest; (4) Specific form; (5) Know legal effect

* Consider: (1) Drunk? (2) Injured/Hospital? (Invol. confess. in Crim?] (3) Minor? (403) (4) Asleep/Unconscious? (usually NO]
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Hearsay Exceptions ² Declarant Availability Immaterial - 803

1.c Present Sense Impression (Nuttall³wife·s testimony on dead husband·s call re illness admitted)
(a)c Timing: While event/condition occurring or immediately thereafter
(1)c ´immediately thereafterµ
: moments after
: case-by-case analysis
: Usually oral over written
: Stricter than Excited Utterance
(b)c Content: Must describe event/condition

* CAL 1241: Must be PSI of declarant·s own conduct/participation + uttered contemporaneously

* FRE: NOT required to be: (1) Participant in event; (2) Startling

* Rationale: (1) Little chance of contrivance or misrecollection; (2) Guaranteed firsthand info; (3) Valuable evidence
2.c Excited Utterance (Arnold³3 excited statements by V re D·s threats with gun)
(a)c ´Relating toµ Startling event/condition
(1)c Usually: Just assaulted; witnessed car accident; Emergency health issues; Calls for help
(2)c Any statement related to event, not just description of the event, is OK
(b)c While declarant under stress of excitement caused by event
(1)c Exclamation mark?
(2)c Outward signs?
(c)c Factors
(1)c Nature of event
(2)c Nature of statement
(3)c Lapse of time
(4)c Response to inquiry
(5)c Age & mental condition of declarant
(6)c Nature and manner of declarant

* CAL 1240: Spontaneous statement + Under stress of excitement + Event perceived by declarant

* NO Time requirement: Could be days or years later

* NOT Needed/Matter: (1) while or immediately after; (2) cause of excitement; (3) pause in excitement between event & statement;
(4) additional evidence; (5) direct participation in event by declarant
* Rationale: (1) Less chance of contrivance; (2) Less chance of lying
3.c Then Existing Mental, Emotional, or Physical Condition (Hillmon; Pheaster)
(a)c ´Then-existingµ about the present or future
(b)c State of mind, emotion, sensation, physical condition ² intent, plan, motive, design, mental feeling, pain, bodily health
(1)c NOT including memory or belief to prove the fact remembered or believed
(2)c EXCEPT relating to execution, revocation, identification, or terms of declarant·s WILL
: Can include backward-looking facts

* Issues:
(1) Backward looking? ² NOT OK
(2) Relevant? ² Depends on the nature of dispute; E.g., YES in extortion case & Self-D defense in murder case
(3) Predicting another·s behavior? ² Hillmon: YES of own, but not of another·s unless ind evid; Pheaster: YES to another·s
(4) Fact-laden statements ² Cured by limiting instruction? Redaction?
(5) Untrustworthy conditions -- Judge decides using CAL 1252³circumstantial test; FRE 403³balancing test
* Rationale: (1) Need to get inside head; (2) People act in acc w/ thought;
4.c Medical Diagnosis or Treatment (Blake³child abuse case, ID of attacker is reasonably pertinent)
(a)c Describes medical history, symptoms, pain, cause
: Including how injury occurred
(b)c For purposes of diagnosis or treatment
: Made be made to non-MD health professionals
: Other doctors who hear from primary doctor may testify to the statement
(c)c Reasonably pertinent to diagnosis or treatment
: Covers all types of statements, including ID of assailant
: Use Renville Test (Blake)
(1) Was there motive to make statement? ² for Treatment or Testimony?
(2) Was the content reasonably relied on by physician for diagnosis or treatment?
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* CAL 1253: NO such exception; Only available for child abuse victims; Use 1250 (State of Mind) for present feeling

* PERMITTED: (1) 3rd party may on patient·s behalf; (2) Various types of health professionals; (3) other doctors· diag.
* NOT Permitted: Circumstances indicate contact with MD for litigation
* Rationale: (1) People don·t usually lie to doctors; (2) Life & health may depend on answers

5.c Past Recollection Recorded (Scott³this exception ok in crim trial, if cross-x available)
(a)c Declarant·s own memo or record
(b)c Concerning matter declarant once had knowledge
(c)c Can·t remember now
(d)c Was made AND adopted when memory was fresh
(e)c Accurately reflects knowledge
(f)c LIMIT: Record may be read, but not admitted as evidence unless offered by the other party

* Rationale: (1) Memory fresher at the time; (2) Controlled thru using only when declarant can·t remember & only read
6.c Business Record (or Absence of Business Record) (Petrocelli; Palmer; Lewis)
(a)c Type
(1)c Any form of record
(2)c All types of events, conditions, opinions, or diagnoses
(b)c Making of Record
(1)c Made at or near time of event
(2)c Made by, or from, person having knowledge
: Petrocelli: MD exception doesn·t apply if MD is relying on patient for surgery info
(3)c Made as regular course of business activity
(4)c Kept as regular course of business activity
: Norcon: Within scope of employment? (Authorized admission)
: Palmer: Internal railroad accident report written for litigation, NOT admitted
: Lewis: Objective, outside investigator·s report, Admitted
: Multiple hearsay rule applies
(c)c At Trial
(1)c Testified to by custodian of records or other qualified witness
(2)c Unless source of info or method of preparation indicate lack of trustworthiness

* NOT OK: Manufactured for litigation purpose (Petrocelli; Palmer; Lewis)

* Rationale: (1) People rely on accurate records; (2) Practical necessity of litigation
7.c Public Record (or Absence of Public Record) (Baker)
(a)c Records of public office or agency in any form
: Includes private entities under K with public agency
(b)c Setting forth:
(1)c Activities of agency
: Within what the agency was established to do
(2)c Matters observed pursuant to duty of law to report (BUT no gov·t/police report admitted in crim cases) (Oates)
(3)c Factual findings from an investigation, but only in civil cases & evidence against Gov·t in crim cases (Oates)
: May include conclusions & evaluative opinions regarding facts (Baker)
(c)c Unless lacking trustworthiness
* Rationale: (1) No other way to get info; (2) Trust due to public servants & repetitive routine
8.c Learned Treatises
(a)c Used on direct if testified to by expert
(b)c Used on cross-x if against the other side·s expert
: If the other party·s expert refuses to recognize authority, then must establish it by other means
(c)c Reliable authority
(d)c No hypos necessary
(e)c Read statements, but admit the treatise itself
9.c Reputation ² Because widely accepted
(a)c Character
(b)c Family history
(c)c Boundaries
10.c More Records
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(a)c Vital stats
(b)c Religious org. records
(c)c Marriage, baptismal certificates
(d)c Family records
(e)c Public office property records
(f)c Ancient documents: Authentic + 20 yrs
(g)c Market reports, directories
(h)c Judgments of convictions
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Hearsay Exceptions ² Declarant Unavailable - 804

Unavailable (Forfeiture by wrongdoing ± doesn·t make statement ´unavailableµ)
(1)c Privilege claimed; (2) Refuses to testify; (3) Memory lacking; (4) Death or illness; (5) Can·t serve, process
1.c Former Testimony (Lloyd)
(a)c Prior proceeding ² Declarant physically present there
(1)c Any official inquiry in which sworn testimony taken such as: trial, deposition, prelim hearing, grand jury in the same or
previous case
(b)c Given against same party or predecessor in interest who had opportunity & similar motive to cross-x
(1)c Only the opponent needs to be the same
(2)c Predecessor in interest: Doesn·t need to be in privity; Community of interest sufficient (Lloyd); Only in civil cases
(3)c Similar motive: Enough overlap over issues needed + Makes earlier cross-x a meaningful substitute
(4)c Different contexts ² between criminal & civil OK
2.c Dying Declarations
(a)c Only in homicide prosecution or civil action
(b)c Declarant believed death was imminent
(1)c Ascertain thru physical condition + nature of statement
(2)c Mere suspicion or conjecture doesn·t count (Shepard)
(3)c Requires ´settled hopeless expectationµ that death is at hand (Shepard)
(c)c Only regarding causes or circumstances of impending death

* CAL 1242: Can use in any type of case BUT declarant must have personal knowledge

* NOT Required: (1) Declarant actually dies; (2) Declarant correct regarding cause of death; (3) Personal knowledge;
(4) declarant be the victim of defendant;
* Judge decides whether dying declaration or not (104)
* Rationale: Religious & psychological forces make the statement reliable
3.c 3d party·s Statement Against Interest (Admission if party statement)
(a)c Against Own Interest
(1)c Financial interest
(2)c Subjects declarant to civil or criminal liability
(3)c CAL 1230: Includes ´Hatred, Ridicule, or Social Disgraceµ ² Social interest, unlike FRE
(4)c Must consider:
: What is the ultimate intent?
: What is the dominant interest?
: How is the statement used after it is made? ² Must believe at the time statement made (Demasi)
: Indirect impact on interest?
: Must have understanding re interest when statement made
: Not Against Interest, if not understood to be against interest
: Conclusory remarks are usually considered against interest
(b)c Reasonable person would not have made unless true
(c)c Corroboration needed if Incupating, if 3d party taking blame for D
(1)c CAL: No need for corroboration
(2)c 2010 FRE Revision: Needs corroboration for any statements against interest in crim cases
(d)c Penal interest
(1)c Exculpating statement: Requires corroboration circumstantially or directly showing trustworthiness
(2)c Inculpating statement: Admissible, if Confrontation Clause requirement met
: 2010 FRE Revision: Needs corroboration for any statements against interest in crim cases
(3)c Collateral statement (implicating the Accused): Disserving + Self-serving or Neutral parts
: Evaluate individual parts to see if against interest. Use only clear against-interest parts (Williamson, 1994)
: O·Connor Plurality: Collateral statement is out, if not against-interest
: Scalia: Naming other person could fall w/in against-interest; See the context
: Ginsburg Concurrence: Should reach Confrontation Clause issue
: Kennedy Concurrence: Allow unless so self-serving that unreliable + added to get favorable treatment
(4)c Confrontation Clause Issue, if Declarant Unavailable
: Crawford: Test of ´Testimonialµ ² Was the Declarant subjected to cross-x? Functional equivalent?
: Davis: Ongoing Emergency exception for police interrogation
4.c Statement of Personal or Family History
(a) Declarant·s own history or own family/intimate associates· history
5.c Forfeiture by Wrongdoing (Prove by mini-hearing on forfeiture ² POE standard)
(a)c Defendant intended to procure unavailability of declarant (Giles)
(1) Giles: Killing witness is not enough; must show intent to procure unavailability separately
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(b)c Defendant procured unavailability of declarant by engaging or acquiescing in wrongdoing
* CAL 1350: (1) Declarant murdered/kidnapped; (2) Only ´serious felonyµ crim cases (3) Clear+convincing stand of proof
* Rationale: (1) Party shouldn·t benefit from misconduct; (2) Preserve witness testimony
Catch-All Exception ² NOT Covered by other rules ² 807 (Weaver)
1.c Equivalent circumstantial guarantees of trustworthiness: Oath; Time lapse; Motive; 1st-hand knowledge; Written; Recant
2.c Evidence of material fact
3.c More probative than other evidence procurable by reasonable effort
4.c Serves interest of justice to admit
5.c Notice to adverse party of the intention to offer ² sufficiently in advance of proceeding to give fair opportunity to prepare

Confrontation Clause ² ONLY in Criminal Cases & Hearsay Evidence Offered Against Defendant
1.c 6th Am:
(a)c Criminal prosecutions
(b)c Right of the Accused (Not prosecution)
(c)c Right to be confronted with witnesses against him
2.c Meaning of Confrontation
(a)c Coy: Right to see & be seen ² Not a per se rule
(b)c Craig: Case-by-case exception for young victims; Use one-way video
3.c Rationale: (a) Harder to lie to someone·s face; (b) Cross-x exposes lies; (c) Tradition
4.c Tension between (a) No hearsay & (b) Any hearsay ± Takes intermediate approach
5.c History: Common Law ± Due Process ± Reliability (Roberts) ± Opportunity to Cross-X (Crawford)
6.c Roberts
(a)c Cross-X: Reliable
(b)c Can·t Cross-X: Indicia of reliability needed
(1)c Firmly rooted exceptions: Tradition
: Co-Conspirator statement; Excited utterance; MDs; Business & Public records; Dying declaration; Agent admit
(2)c Particularized guarantees of trustworthiness
: Against-interest statement; Child abuse statutes; Grand jury testimony thru Catch-All
7.c Crawford
(a)c Statement inadmissible if no prior opportunity to cross-x & witness unavailable
(b)c ´Testimonialµ: What witness does; That which is meant to be preserved as testimony
(1)c Ex parte statement to the court or its functional equivalent
(2)c Extrajudicial record
(3)c Reasonable anticipation of use at trial
(4)c Response to police interrogation
8.c Davis: Police interrogation context
(a)c Testimonial/Nontestimonial
(b)c Ongoing emergency + Primary purpose
(c)c Declarant·s intent
9.c Impact on Hearsay
(a)c 801 Prior Statements (PIS; PCS; ID): No impact; Witness on stand and available for cross-x
(b)c 801 Admissions: No impact; Parties available in court for cross-x
(c)c Statement with prior opportunity to cross-x is OK
(1)c Minimal opportunity OK as long as Declarant present (Owens ² let jury evaluate)
(2)c Can be prior to trial or deferred to trial
(3)c Prelim hearing: OK
(4)c Grand jury: Not OK (no cross-x)
(d)c Most Statutory Hearsay Exceptions are OUT if statement given to police officers or govt authorities -- except:
(1)c Seeking emergency assistance (// PSI & Excited Utterance) thru ongoing emergency exception
(2)c Business/Public records kept routinely, but police records are OUT, including DNA analysis cert. (Melendez-Diaz)
(3)c Co-conspirator statements
(4)c Forfeiture by wrongdoing
(5)c Dying declaration ² likely
(6)c Learned treatises
(7)c Family history: Usually not made to preserve testimony
(8)c Private statements, generally non-testimonial. Children·s statement to parents³nontestimonial; to police³testim.
(e)c Shortcut to using testimony ???
(1)c Notice laws?
(2)c D·s burden to subpoena?

APPROACH TO HEARSAY ISSUES

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STEP #1: Use for Hearsay or Non-hearsay Purpose? (801-802)

STEP #2: Fits a Hearsay Exception? (803-804, 807)

STEP #3: Meets Constitutional Requirements? (Crawford-Davis)

(1)c Unavailable?
(2)c Prior opportunity to cross-x?
(3)c Testimonial?
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CHARACTER EVIDENCE ² 404(a) ² Propensity Evidence

1.c Inadmissible to prove action in conformity therewith on a particular occasion, except in civil cases where claimant seeks
damages for sexual assault or child molestation (415)
2.c Admissible for other purposes
Exceptions ² Party presenting character evidence must lay FOUNDATION
1.c Character of Accused ² 404(a)(1)
(a)c Rule: Character of criminal D inadmissible to prove conduct on a particular occasion
(b)c Exceptions
(1)c Pertinent trait offered by D
(2)c Pertinent trait offered by Prosecution to rebut (1)
: Pertinent = Relating to the crime/dispute at issue
: Proof specific to the trait in question, not general character
(3)c When D attacks V·s character, Prosecution can offer evidence regarding same trait in D
: Juries consider in light of all the evidence; character may create reasonable doubt
2.c Character of Crime Victim ² 404(a)(2)
(a)c Pertinent trait offered by D
(b)c Pertinent trait offered by Prosecution to:
(1)c Rebut what D presented
(2)c Show peacefulness in homicide cases (but can·t attack D·s character)
(c)c Involving Alleged Sex Offense?
(1)c If NO, admissible in Crim case, but not in Civil case
(2)c If YES, specific instance of sexual behavior by victim?
: If NO, Reputation & Opinion inadmissible, except in Civil case if V brought it in
: If YES, Follow procedural guidelines in 412
3.c Character of Witness ² 404(a)(3) ² As provided for in 607-609 ² Main Concern: Reliability; Trustworthiness
4.c Character Evidence in Sex Offense Cases ² 412-415 ² ´Propensityµ (Lustful Disposition) Evidence
(a)c General
(1)c Can be offered by P in case-in-chief
(2)c Specific instances can be used
(b)c 412: Victim·s Chracter - Rape Shield Law
(1)c In rape or sex assault case ² No Reputation or Opinion evidence of victim·s past sexual behavior
(2)c Criminal Case Exceptions
: Recent past sex behavior with others to show semen or injury from another source
: Past sex behavior with D to show consent
: Constitutionally required (Olden v. KY): When necessary to present the entire defense in sexual taboo cases
(3)c Civil Case Exception
: V·s past behavior or sex predisposition, if admissible under FRE and probative value outweighs harm to V (403)
: V·s reputation OK if V placed it in controversy
(4)c Determining Admissibility
: Party seeking admission request at least 14 days in advance of trial with specific description & purpose
: Court may permit sooner or during-trial submission for good cause
: Serve motion to all parties and notify V (and V·s guardian/rep)
(5)c CAL 1103, 1106
: Complaining witness·s sexual conduct not admissible to prove consent (no separate rule re source of semen)
: Admissible if sex with defendant
(c)c 413-415: D·s Character ² Allow ´Propensity Evidenceµ; Q: How specific & How similar?
(1)c 413: Similar Crimes in Sex Assault Cases (Adult or Minor D)
: D·s commission of another sex assault = Admissible & Considered
: P must disclose this intent to D 15+ days before trial or sooner with good cause
: Sex assault = any conduct proscribed under 18 USC chap. 109A; unconsented contact with D·s body/object with
another·s genital/anus, or vice versa
: To Prove Propensity
(2)c 414: Similar Crimes in Child Molestation Cases
: Prior child molestation (under 14 yo) allowed as propensity evidence
(3)c 415: Similar Acts in Civil Cases involving Sex Assault or Child Molestation
: Where damage/relief is predicated on sex assault or child molestation, evidence of similar offense is Admissible
: P must disclose this intent to D 15+ days before trial or sooner with good cause
(d)c 4-step Test
(1)c Is the other offense sex assault or child molest?
(2)c Is the other offense relevant?
(3)c Could a reasonable jury find by POE that D committed the offense charged now?
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(4)c 403?
(e)c Issues
(1)c Prior accusations of rape? ² Courts divided
(2)c Same-sex offenses? -- Generally yes
(3)c Hearing ² Usually ´in cameraµ hearings

Form of Evidence | Method of Proving Character ² 405 (Michelson)

1.c Reputation: Community estimate of a person ² 405(a)
(a)c Must show Witness is member of relevant community
(b)c Must show Witness talked to other community members
(c)c Must show Witness was aware of reputation during pertinent time period
2.c Opinion: Individual view of a person ² 405 (a)
(a)c Must show Witness had personal knowledge during pertinent time period
* On Cross-X of Testimony on Reputation or Opinion, Qs on relevant specific instances of conduct allowed;
: Related arrest OK
: Can·t just make up questions to create innuendo; Must have good faith factual basis for Qs

3.c Specific Instances of Conduct: Usually Civil Case; Rarely Criminal Case (maybe ´seductionµ) ² 405(b)
(a)c Where character is an essential element of charge, claim, or defense
(b)c Examples
: Defamation (impact on reputation)
: Negligent entrustment (careless person?)
: Child custody (which parent has better character?)
: Wrongful death (´worthµ of decedent)

Prior Acts, Crimes, Wrongdoings ² 404(b) (CAL 1101(b))

1.c Not admissible to prove character of person in order to show action in conformity (i.e., Propensity evidence)
2.c Admissible for other purposes ² specific inference based on conduct ² Can be offered by P in case-in-chief
(a)c Proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, etc.
(1)c Intent: Evidence that D sold drugs before as proof that he had intent to sell drugs this time
: Two-step inference: 1. Past sales ± disposition; 2. Disposition ± Intent to sell this time
(2)c Identity; Modus operandi: Signature or distinctive m.o. suggesting he probably committed this crime
: The two crimes must have high degree of similarity and uniqueness
(3)c Plan; Design
(4)c Absence of mistake or accident: E.g., child abuse case where parents claim injuries from accident
(5)c Motive; Opportunity
(6)c Res Gestae (´things doneµ; acts, events that are ´part & parcelµ of crime)
(b)c Provided that upon request by D, Prosecution in a criminal case provides reasonable notice of the general nature of
evidence it intends to introduce
(c)c Notice must be in advance of trial or during trial if the court excuses lack of pretrial notice on good cause shown
3.c Ways of Proving
(a)c Judgments of convictions
(b)c 3d party witnesses
(c)c Cross-X
(d)c In case-in-chief or rebuttal
(e)c D·s statements
(f)c Even acquittals
4.c Defense ² Argue 403
(a)c Prejudicial > Probative!!
(b)c Factors to consider
(1)c What·s at issue?
(2)c Similarity of acts
(3)c Timing of acts
(4)c Strength of evidence of prior acts
5.c Determining Admissibility ² Conditional Admissibility by Judge (104(b), 403)
(a)c Standard
(1)c Relevance: Minimal standard
(2)c Sufficient Evidence to meet 104(b)? Examine & Decide whether Jury could find by POE (Huddleston)
(b)c Consider: Risk of prejudice to D; Probative worth and risks of unfair prejudice; Confusion of issues
c 12c
(c)c Four-part test or process under which the judge decides ² whether permissible purpose & prior act (Huddleston):
(1)c Whether the evidence is offered for a proper purpose
(2)c Whether it is relevant for that purpose
(3)c Whether its probative worth is outweighed by the risk of unfair prejudice and
(4)c Whether to give a limiting instruction on request
(d)c If D offers an entrapment defense, he is saying that but for the inducement of the government, he would not have otherwise
committed the offense. Under 405(b), the prosecutor can offer proof that D committed similar crimes b4.

Habit Evidence ² 406 ² Freely ADMITTED; Probative of CONDUCT

1.c Definitions
(a)c Regular practice of meeting a particular kind of situation with a certain type of conduct
(b)c Reflex behavior in a specific set of circumstances
(c)c Regular response to repeated situation
2.c Habits v. Character
(a)c H: Nonvolitional, Repetitive behavior (reflex]; semi-automatic; mechanistic; regular; invariable
(b)c H: Specific situations and Particular kind of situation; observable
(c)c C: General; Tendency in all the varying life situations; involves others· opinion/view/conclusion of what·s internal
(d)c C: Moral overtones
3.c Two Types
(a)c Personal Habit
(b)c Organizational Routine Practice ² normal rules and processes
4.c Proving Habit
(a)c Simple relevance showing -- that conduct of person/org was in conformity to habit or routine practice
(b)c No need for corroboration or eyewitness
(c)c Industry practice not covered ² too general; has to be the party·s own habit
5.c Most often in civil negligence cases

Subsequent Remedial Measures ² 407

1.c General Rule
(a)c Measures after injury/harm allegedly caused by D that would have prevented or made less likely
(b)c Not admissible to prove ² Negligence or Products Liability
(1)c Negligence
(2)c Culpable conduct
(3)c Defect in product or design
(4)c Need for warning/instruction
2.c Exception - Offer for another purpose, such as:
(a)c Controverted Issues
: Proving ownership or control ² ´We didn·t have the power to make the change.µ
: Feasibility of precautionary measures ² ´No better design was possible.µ (Tuer ² discontinuing drug after death)
(b)c Impeachment: ´We would never change that design.µ
3.c ´Feasibilityµ
(a)c Narrow: D contends the measures were not physically, technologically, or economically possible ² Tuer Ct·s choice
(b)c Broad: D contends the measures were capable of being utilized successfully; = advisable using best judgment
(c)c Feasible OR Feasible but not recommended?
4.c ´Impeachmentµ
(a)c Narrow approach preferred ² Has to be directly contradictory ² Tuer Ct·s choice
(b)c Policy reason ² encourage review and improvement
5.c FRE v. CAL
(a)c FRE 407: Subs. Rem. Measure, Inadmissible in products liability, unless Exception
(b)c CAL 1151: SRM, Admissible in products liability (Ault ² P can admit change in design; Mfrs won·t be deterred)
6.c Erie Doctrine: Fed cts must follow state subst law in diversity cases if subt issue
(a)c Courts are split
(b)c FRE 407: Procedural or Substantive choice?
c 13c
: Proc: Fed rule applies
: Subst: State rule applies
7.c When is the event that triggers SRM if applied to prod liability?
(a)c Accident is the event
8.c Rationale
(a)c Encourage improvements
(b)c May have made changes to be cautious
(c)c Tradition / Common Law
c 14c

Settlement & Plea Bargain Negotiations - Compromise and Offers to Compromise

1.c Civil Settlements ² 408 ²General Rule ² applies also in Crim cases
(a)c Inadmissible Evidence:
(1)c Furnishing or offering or promising to furnish, or
(2)c Accepting or offering or promising to accept
: A valuable consideration in compromising or attempting to compromise a claim which was disputed as to either
validity or amount
(3)c Conduct or statements made in compromise negotiations
(4)c Not admissible to prove liability for or invalidity of the claim or its amount.
(b)c Exceptions
(1)c In a criminal case, conduct or statements made during negotiations of related civil case with government
(2)c Evidence otherwise discoverable outside of compromise negotiations
(3)c Evidence is offered for another purpose, such as:
: Proving bias or prejudice of a witness
: Negativing a contention of undue delay, or
: Proving an effort to obstruct a criminal investigation or prosecution
(4)c Statements made in the presence of government agents may be offered in a later criminal case if related to a claim by a
governmental authority in the exercise of it
2.c Criminal Plea Bargains ² 410 - General Rule
(a)c Inadmissibility of Pleas, Plea Discussions, and Related Statements - in any civil or criminal proceeding, against the
defendant who made the plea or was a participant in the plea discussions:
(1)c Plea of guilty which was later withdrawn;
(2)c Plea of nolo contendere;
(3)c Any statement made in the course of any proceedings under Rule 11 of FRCrimPro or comparable state procedure
regarding either of the foregoing pleas; or
(4)c Any statement made in the course of plea discussions with an attorney for the prosecuting authority (or a govt agent
with the authority to bargain] which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
(b)c Exception - Above statements Admissible
(1)c In any proceeding wherein another statement made in the course of the same plea or plea discussions has been
introduced and the statement ought in fairness be considered contemporaneously with it, or
(2)c In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the
record and in the presence of counsel
(c)c Lessons for Crim Def
(1)c Negotiate with Atty for prosecuting authority
(2)c Negotiate own client·s case only
(3)c When necessary, speak in hypotheticals
(4)c Try to plea nolo contendere
(d)c Lessons for Prosecutors
(1)c Make sure agents don·t negotiate
(2)c Avoid nolo contendere pleas
(3)c US v. Verdoon: Please proposals cannot be used against gov·t
(4)c US v. Mezzanatto: Negotiate for waiver of FRE 410

Proof of Payment of Medical Expenses ² 409

1.c General Rule
(a)c Excludes only "furnishing or offering or promising to pay" medical and similar expenses (which seems narrower than the
coverage of FRE 408
(b)c Excludes if offered to show liability
(c)c 408 excludes not only settlement offers, but "conduct or statements made in compromise negotiations."
(d)c This difference in wording suggests that statements accompanying an offer to pay medical expenses might not be
excludable under FRE 409, although such statements would be excludable if the context suggests that the parties were
trying to settle the case.

Proof of Insurance Coverage ² 411

1.c General Rule
(a)c Excludes proof of insurance coverage offered to prove negligence or care
2.c Exception
(a) Can use to show ownership or bias
c 15c

COMPETENCY OF WITNESSES (601-606) ² Judge Decides ² ´qualification of a person to be a witnessµ (104(a))

1.c General Rule (601)
(a)c Every person is competent to be a witness if meets:
(1)c Personal knowledge requirement (602)
: Applies to ALL witnesses
: Experts can testify to non-personal knowledge info
: That the statements were made & That the statements made are true
: Conditional relevancy determination for the jury under 104(b)
: // Hearsay exception under 803 & 804 which require the same
(2)c Oath -- or affirm (oath w/o God) ² to tell the truth (603)
: Form requirement - to awaken the conscience & impress the mind with duty
2.c Exception
(a)c Erie Doctrine: In civil actions and proceedings, with respect to an element of a claim or defense as to which State law
supplies the rule of decision, the competency of a witness shall be determined in accordance with State law

3.c Children ² Competent if:

(a)c Can take & understand oath; Can tell between truth and lie
(b)c Can express to be understood
4.c Previously Hypnotized Witnesses (Rock)
(a)c No per se prohibition, but state has legit interest in barring unreliable evidence
(b)c Balancing test to test reliability
(c)c CAL § 795
(1)c Procedural protections (standard; recording before and after; hearing)
(2)c Only applies to witnesses in crim proceedings
5.c Lawyers in a Client·s case
(a)c Allowed under FRE
(b)c NOT allowed by Code of Professional Responsibility unless:
(1)c Solely on uncontested issue
(2)c Solely regarding formality and no expectation of substantial evidence offered in opposition
(3)c Solely on nature and value of legal services rendered in the case
(4)c Substantial hardship on client if not testifying
6.c Jurors (606) (Tanner)
(a)c At the trial
(1)c No juror testimony in the same trial
(2)c If juror called, opposing party may object outside presense of jury
(b)c Post-trial Inquiry into validity of verdict or indictment
(1)c No juror testimony on
: jury deliberations
: influences on juror's mind or emotions to assent or dissent
: juror's mental processes
(2)c Exception: If juror can testify, he can only testify THAT such thing occur, but NOT on how it influenced
: Extraneous prejudicial information was improperly brought to the jury's attention
: Outside influence was improperly brought to bear upon any juror
: Mistake in entering the verdict onto the verdict form
(3)c No juror affidavit or evidence of any statement on what he·d be precluded from testifying
(4)c BUT « if other evidence shows that jurors misbehaved, then that may be admitted
7.c Judges (605)
(a)c General: Cannot be a witness over which he presides
(1)c FRE 605: No objection needed
(2)c CAL 703: Objection needed
(b)c Can ask questions, if not serving as advocate, but must allow for cross-x (614(b))
c 16c

FORM OF EXAMINATIONS (611)

Direct Examination
1.c General Rule
(a)c Court controls form
(b)c Cross-X limited to subject matter of Direct
(c)c No leading Qs
2.c Exception to ´No Leadings Qsµ
(a)c When necessary to develop testimony with witnesses who are:
(1)c Very young, thus apprehensive, confused
(2)c Timid, reticent, reluctant, frightened
(3)c Ignorant, uncomprehending, unresponsive
(4)c Infirm
(b)c Uncooperative, hostile or adverse witness ² 611(c)
: Victims, Snitches
: Can point out from beginning or middle that Witness is hostile
(c)c When Rule is more trouble than worth
(1)c Save time
(2)c Obvious that no objection will be raised
(3)c Expert witnesses who won·t be ´ledµ
(d)c When to refresh recollection when memory seems exhausted (612)
(1)c Anything can be used to refresh recollection (Baker; Julian)
: But if used, the other party can examine, inspect, use and introduce instrument used while or before testifying
: Balancing Issue ² ´necessary in the interests of justiceµ (612)
: If not related to subject matter, Judge can examine in camera & redact; redacted portion, saved for appeal
(2)c The instrument with which memory is refreshed doesn·t need to be prepared by witness
: Instrument (document, etc.) is NOT admitted
(3)c Higher standard only for ´Past Recollection Recordedµ hearsay exception
: Past recollection recorded ² Diff. from Present recollection refreshed
(e)c Cross-X, but cannot lead your client or one aligned with your client, even when cross-x
Cross Examination (Crim: 6th Am; Civil: Tradition to preserve adversial process)
1.c General Rule
(a)c Limited to subject matter of Direct
(b)c Leading Qs OK, unless own client or aligned with own client
2.c May Cross-X on witness prep material (privileged docs; att·y work product) which was disclosed during discovery (Julian)
(a)c Deposition = Testimony
(b)c Witness prep docs: Not work product; Even if work product, privileges waived when used to prepare for testimony
(c)c Use of privileged doc to refresh memory = waiver
(d)c Jencks Act
(1)c Crim Ds can obtain statements by govt witnesses only after they testify.
(2)c Rul 612 is discretionary as to pre-testimony docs. Can ask generally about basis of testimony, but not specifics
(e)c Disclosure, by itself, doesn·t mean waiver of work product privilege ² Balancing Test (US v. AT&T)
3.c If Witness doesn·t submit to Cross-X ± Either Contempt of Court or Move to Strike Entire Direct Testimony
4.c
Excluding Witnesses (615)
1.c General Rule
(a)c Non-party witnesses should be excluded from the courtroom to prevent them from hearing each other
(1)c May be directed not to speak to each other either
(2)c May not read daily transcript of the trial
(b)c Process
(1)c Party must request exclusion + Court must grant request, unless exception fits
(2)c Court may exclude sua sponte
(3)c Key: Prejudice must be found in order to justify both exclusion from trial or some other sanction, and to justify reversal
when a sanction is not imposed.
(c)c Exceptions
(1)c a party who is a natural person ² incentive for D to go last
: Victim not a party
(2)c an officer or employee of a party which is not a natural person designated as its representative by its attorney
(3)c a person whose presence is shown by a party to be essential to the presentation of the party's cause,
: Investigating officers
: Sometimes, experts
: But NOT victims
c 17c
(4)c a person authorized by statute to be present (recent addition to the rule)
: Victim covered by statute in most places, inc. 18 USC 3510, Utah, unless Prosecutor doesn·t want victim
: Victim can come in after testifying
(d)c If violated, may be «
(1)c Excluded (not automatic)
(2)c Jury told to weigh the fact of ill-gotten info
(3)c Limiting instruction to jury
(e)c Daily transcripts
: Technically not covered by 615, but att·y can ask for order against use of it

IMPEACHMENT
Questions to Ask
1.c Relevance?
2.c Credibility? (403)
3.c When?
(a)c Direct Exam: Even if your own Witness
(b)c Cross-X
4.c Type of Evidence
(a)c Intrinsic
(b)c Extrinsic
5.c Both Parties can Impeach
6.c Methods
(a)c W Has Bias (has interest in the outcome): No FRE Rule
(1)c Show potential to lie
(2)c Illus: Abel ² gang membership; limiting instruction (reduce prejudice)
(3)c How? -- Extrinsic Evidence; Cross-X
(b)c Bad Perception or Memory: No FRE Rule
(1) How? - Extrinsic Evidence; Cross-X
(c)c Evidence of Prior Acts that goes to honesty to show the type of person: 608(b)
(1)c How? ² Cross-X only; Thus, Q·er is stuck with the answer; If W denies, 404(b) use possible
(2)c Must be about deceitful acts
(3)c Q·er must know the acts to be facts in good faith
(4)c Manske: Holding ² Middle ground ² Goes to honesty; Neither only directly related to honesty, nor any wrong
(d)c Prior Convictions: 609 ² from after freed from prison
(1)c How? - Extrinsic Evidence (thru 803(22) & 803(23) ² Crim & Civil convictions); Cross-X
(2)c 609(a)(1): All Felonies NOT involving dishonesty
: W = Crim D: Reverse 403 test ² Has to be substantially probative & low prejudice to come in
: Any other W: 403 test ² Has to be substantially prejudicial to keep it out
(3)c 609(a)(2): All Felonies involving dishonesty SHALL come in
: Automatic
: No 403 analysis
(4)c CAL ² All convictions can be admitted to impeach

(5)c 609(b)-(e): Take these and play with 609(a)(1)

c 18c

IMPEACHMENT
1.c Five methods
(a)c Showing of bias, animus, motivation, corruption leading to fabrication, slant
(b)c Showing defect in sensory or mental capacity that undercuts testimony
(c)c Showing that by disposition untruthful
(1)c Cross-X about nonconviction misconduct casting doubt on honesty - 608(b)
(2)c Cross-X about certain kinds of convictions ² 609
(3)c Testimony by another witness that Witness is untruthful ² 608(a)
(d)c Specific in calling into doubt particular points of testimony, but Indefinite in that underlying cause not revealed
(e)c Contradicting directly on one or another point in testimony
2.c When?
(a)c During Cross-X
(b)c After Exam, by extrinsic testimony
3.c Bias & Motivation ² Not covered by FRE, so freedom in the type of evidence brought in
(a)c Amount of payment to testify
(b)c Relationship; Interaction
(c)c Past statements
(d)c A witness' and a party's common membership in an organization, even without proof that the witness or party has
personally adopted its tenets, is certainly probative of bias. (Abel)
(1)c Common membership in any organization shows possible bias
(2)c Common membership in lying & murderous organization, even absent proof of adoption of those tenets by the witness,
shows possible dishonesty.
(3)c The evidence shows that Mills: (1) might lie for his buddy Abel and (2) might be a liar generally

Prosecutors are obliged to give over all evidence on witnesses

(e)c The Graham study suggests that courts allow questions about (a) continuing employment by the calling party and (b) prior
testimony for the same party or attorney,
(f)c but not those about
(a)c (c) previous compensation from the same party or attorney on other cases, (d) the proportion of the expert's total income
which comes from testifying for a party or type of party, or (e) the degree to which the expert limits his testimony to certain
causes or certain sides of issues.
4.c Sensory & Mental Capacity
c 19c

OPINIONS
Lay Opinion ² FRE 701
Who can testify? ² Anyone
1.c Rationally based on perceptions
2.c Helpful to jury
3.c Not covered by FRE 702 (Experts)
4.c Cannot speculate
5.c Cannot give legal conclusions
6.c Cannot speak to ultimate issue
Expert Opinion ² FRE 702-704
Who is an Expert? ² FRE 702
1.c Specialized knowledge
2.c ´Scientific, technical or other specializedµ
3.c Very broad
When can Experts testify?
1.c Assist the trier of fact to understand the evidence or decide a fact in issue
2.c Doesn·t matter if it·s within jury·s sphere of knowledge (In re Japanese Products)
3.c Judge decides whether it·s helpful
4.c Limitation: Can·t speak to legal conclusions
Basis for Expert Testimony
1.c Firsthand knowledge
2.c Facts learned at trial
3.c Outside data
4.c Hypotheticals
Cautions ² FRE 703
1.c Experts may rely upon inadmissible evidence to form opinions
2.c Inadmissible evidence should not be disclosed to jury unless court determines probative > prejudicial
c 20c

JUDICIAL NOTICE ² FRE 201

1.c Only adjudicative facts
2.c Not subject to reasonable dispute
3.c Generally known in the Jx ² OR ² Capable of accurate and ready determination through sources whose accuracy cannot
reasonably be questioned
4.c #1 Question: Mandatory or Discretionary?
(a)c Mandatory
(1)
(b)c Discretionary
5.c #2 Question: Civil or Criminal v-a-v Jury
(a)c Civil: Jury must accept as fact
(b)c Criminal: Jury may accept as fact

6.c Illust
(a)c Weather condition (w/ weather report): Yes
(b)c Subpoena served & Prior contempt in out-of-state court:
(1)c Service Document: Yes, but not the actual service
(2)c Contempt: Yes
(c)c Driving Time: No; Mental state/Conclusion drawn: No
(d)c TV program listing in TV Guide: No (Maybe from FCC)
(e)c 9/11 Attack: Yes; Resulting Conditions: No
(f)c Asbestos causes cancer: No ² No notice doesn·t mean can·t contest later
(g)c Case ² Gereau: Judges should be ruling evidence, not on what they know

AUTHENTICATION ² FRE 901

1.c Definition: To establish evidence sufficient to support a finding that the matter in question is what it purports to be
2.c Chain of custody: How?
(a)c Don·t need to have everyone who touched it come in
(b)c But enough to establish chain
(c)c Goes to Weight of evidence, not admissibility (Howard-Arias)
3.c Writings: How?
(a)c Witness who saw it executed
(b)c Non-expert handwriting opinion
(c)c Handwriting expert
(d)c Distinctive content: Louie·s Chinese note that talks about other facts
(e)c Certificate from courthouse, or other public records
(f)c Ancient document (over 20 yrs)
4.c Tape Recordings
(a)c Recognition of voice
(b)c Monitored taping
(c)c Voiceprints
(d)c BUT transcripts are not themselves evidence, except when authenticated for admission into evidence
5.c Other Evidence
(a)c Photographs
(b)c X-Rays: Talk about the process by which it was made
(c)c Computer Printout
(d)c Phone conversations
(1)c Identify voice (it·s ok, even if you hear voice first and then meet the person later)
(2)c Problem if just nickname
(3)c Phone records (phone co.)
(4)c Other witnesses to the call
SELF-AUTHENTICATION ² FRE 902
1.c Examples
(a)c Docs under seal
(b)c Certified domestic docs
(c)c Certified foreign docs
(d)c Certified copies of public records
(e)c Official publications
(f)c Newspapers and periodicals
(g)c Trademarks
(h)c Notarized docs (don·t need to bring in the maker of the document; self-authenticating)
c 21c
(i)c Certified Copies of Business Records