California Bar Exam Lecture Notes - Ca Evidence

Transcript

CALIFORNIA EVIDENCE I. PRELIMINARY MATTERS A. Which Law and Rules o E!idence A""l#$ Fede%al law and Fede%al Rules o E!idence &FRE' !s. S(a(e law and Calio%nia E!idence Code &CEC')Which Cou%( A%e You In* 1. MBE-ONLY Federal Law and FRE 2. Essays a. Figure out which court you are in-FEDERAL (federal law and FRE aly! or "#A#E ($alifornia law and $E$ aly!% b. #he fact attern will tell you whether to aly $E$ or FRE OR fact attern will tell you which court you are in& and then you will 'now which rules of e(idence )ust *e alied% (1) +Answe% acco%din, (o Calio%nia law.-- +uly ,-.,& /uestion 01 Fe* ,-..& /uestion 21 +uly ,-.-& /uestion 01 +uly ,--3& /uestion 01 Fe* ,--3& /uestion 0% (2) +Answe% acco%din, (o (he Fede%al Rules o E!idence.-) Fe* ,-.,& /uestion 0% (3) 4f 5uestion does not indicate which rules aly  use FRE% +uly ,--6& /uestion 0% NOTE$ For the )ost art& the federal and $alifornia rules are (ery si)ilar& although the wording )ay differ1 )any of the $alifornia rules contain clarifications or ela*orations of the rinciles found in the Federal Rules% 4f your )aterials do not descri*e or e7lain a difference& assu)e the law is the sa)e% .. C%i/inal &Li0e%(# a( s(a1e' o% Ci!il &22 a( s(a1e'$ 1. For $R4M4NAL )atters in $AL4FORN4A "#A#E court& discuss P%o"osi(ion 3 - the 8#ruth in E(idence9 a)end)ent to $alifornia% (Ma'es all rele(ant e(idence ad)issi*le in a cri)inal case& e(en if otherwise o*:ectiona*le under the $E$& su*:ect to so)e e7cetions%! C. Whe%e no %ule is discussed4 (he%e is NO DISTINCTION 0e(ween FRE and CEC. Re(iew your MBE E(idence )aterials for rules and e7a)les% 2 II. RELEVANCE 5Ini(ial anal#sis in an# 6ues(ion)is (he e!idence %ele!an(*5 A. Definition; BO#< $E$ AND FRE; E(idence is rele(ant if it has any tendency to )a'e the e7istence of any fact of conse5uence to the deter)ination of the action )ore or less ro*a*le than it would *e without the e(idence% .. Distinction; 1. FRE$ Any fact- it need not *e a fact in disute% 2. CEC$ Mus( "e%(ain (o a 7dis"u(ed ac(.7 E8AMPLE$ =rosecution of con(icted felon with a gun% 4f you stiulate to the fact that the erson is a con(icted felon& this is no longer a disuted fact% #herefore& in $A state court& the fact that erson is a con(icted felon is no longer rele(ant since it is not disuted& therefore& that fact is not ad)issi*le% 4n federal court& it would still *e considered a rele(ant fact& e(en though it is not disuted& and therefore& ad)issi*le% C. PROPOSITON 3$ 8#ruth in E(idence9 A)end)ent to $A $onstitution% 1. ALL rele(ant e(idence is ad)issi*le in a cri)inal case& e(en if otherwise o*:ectiona*le under the $E$& su*:ect to certain e7cetions% 2. E>$E=#4ON" #O =RO= ?; #hese o*:ections are NO# o(erruled *y =ro ?; a. $onfrontation clause (e7clusionary rule! b. '$ #he court in its discretion )ay e7clude e(idence if its ro*ati(e (alue is su*stantially outweighed *y the ro*a*ility that its ad)ission will (a! necessitate undue consu)tion of ti)e or (*! create su*stantial danger of undue re:udice& of confusing the issues& or of )isleading the :ury% 3 E. P?.LIC POLICY E8CL?SIONS TO RELEVANT EVIDENCE 1. Su0se6uen( Re/edial Measu%es$ E(idence of safety )easures or reairs after an accident is inad)issi*le to ro(e negligence% a. FRE$ E7clusion of su*se5uent re)edial )easure co(ers negligence AND "%oduc(s lia0ili(#@s(%ic( lia0ili(# cases. b. CEC$ E7clusion of su*se5uent re)edial )easures does NO# aly in strict lia*ility (roducts lia*ility! cases% Ne,li,ence onl#. 2. Oe% To Pa# Medical EA"enses$ E(idence of ay)ents or offers to ay )edical e7enses is inad)issi*le when offered to ro(e lia*ility for the in:uries in 5uestion% a. FRE$ Only e7cludes offers to ay )edical e7enses& NO# any acco)anying state)ents% NOTE$ Acco)anying state)ent could *e e7cluded under FRE if it was art of a settle)ent offer% ("ee *elow%! b. CEC$ Also )a'es acco/"an#in, s(a(e/en(s )ade along with offers to ay )edical e7enses inad)issi*le% E8AMPLE$ After a car accident& dri(er states; 8DonAt worry it was )y fault& 4 rear-ended you and 4 will ay your )edical e7enses%9 FRE$ Only the offer to ay )edical e7enses is e7cluded and state)ent 84t was )y fault& 4 rear-ended you9 would *e ad)issi*le% CEC$ #he entire state)ent will *e e7cluded% $E$ rule is *roader% E8AMPLE$ After a car accident& dri(er states; 84f you sign a release& 4 will ay your )edical e7enses *ecause it was )y fault 4 rear-ended you%9 Dnder *oth FRE and $E$& the entire state)ent will *e e7cluded-the offer to ay )edical and the acco)anying state)ents--- as *oth are arts of the offer to settle% Dnder $E$& e(en if not art of an offer to settle& the acco)anying state)ent to the offer to ay )edical e7enses is e7cluded% Dnder FRE& in order to e7clude the whole state)ent& it )ust *e art of a settle)ent offer% 3. Se((le/en( Oe%s$ Both FRE and $E$ e7clude settle)ent offers and state)ents )ade in connection with settle)ent offers for uroses of ro(ing lia*ility& ro(ided the clai) is disuted either as to (alidity or a)ount% a. FRE$ Both FRE and $E$ e7clude settle)ent offers and state)ents )ade in connection with settle)ent offers for uroses of ro(ing lia*ility& ro(ided the clai) is disuted either as to (alidity or a)ount% b. CEC$ E7tends this rule to discussions and state)ents during /edia(ion% 4. Plea Ne,o(ia(ions$ "o)e con(ersations in lea *argain discussions are not ad)issi*le in a ci(il or cri)inal case e(en if a lea agree)ent is not reached% 4 $on(ersations are considered ri(ileged and therefore& inad)issi*le% a. FRE$ Li)ited to con(ersations with rosecutors% b. CEC$ $o(ers con(ersations with rosecutors AND (he "olice& as long as they are state)ents )ade in the course of *ona fide lea negotiations% Does not include unsolicited offers to lead guilty& state)ent )ade to transorting olice officers& sontaneous state)ents in court% 5. EA"%essions o S#/"a(h# a. FRE$ No rule here% b. CEC$ 4n a $4B4L case& $E$ also e7cludes the ad)ission of state)ents& writings& and *ene(olent gestures e7ressing sy)athy relating to the ain& suffering or death of a erson in(ol(ed in an accident& which state)ents are )ade to the erson or their fa)ily% But state)ents of fault )ade in connection with such an e7ression are NO# e7cluded% E8AMPLE$ After a car accident& dri(er states; 84 a) so sorry you are hurt& 4 should not ha(e *een dri(ing so fast and rear-ended you%9 FRE$ #he entire state)ent would *e ad)issi*le% CEC$ 84 a) so sorry9 is inad)issi*le as e7ression of sy)athy *ut 84 should not ha(e *een dri(ing so fast and rear-ended you9 is ADM4""4BLE *ecause it is rele(ant e(idence and not e7cluda*le as offer to ay )edical e7ense or settle)ent offer or any other reason% III. WITNESSES AND TESTIMONIAL EVIDENCE A. Co/"e(enc# 1. FRE$ E(eryone is co)etent to *e a witness in federal court% 2. CEC$ A erson is dis5ualified to *e a witness if he@she is; a. incaa*le of e7ressing hi)self@herself concerning the )atter so as to *e understood& either directly or through interretation1 or b. incaa*le of understanding the duty to tell the truth% .. Pe%sonal Bnowled,e$ Dnder *oth FRE and $E$& lay witnesses (not aearing as e7erts! can testify only a*out )atters of which they ha(e =ER"ONAL ENOFLEDGE% 1. Must ha(e e7erienced so)ething through the fi(e senses% C. Oa(h 1. FRE$ Before testifying& e(ery witness )ust ta'e an oath that he@she will testify truthfully 2. CEC$ Before testifying& e(ery witness )ust ta'e an oath that he@she will testify truthfully E>$E=# if he@she is a; 5 a. $hild under the age of .- or b. Deendent erson with a su*stantial cogniti(e i)air)ent  May *e re5uired only to ro)ise to tell the truth% D. Cud,e and Cu%o%s As Wi(nesses 1. +udge a. FRE$ =residing :udge a*solutely *arred fro) testifying as a witness in the trial% b. CEC$ =residing :udge )ay testify as a witness& if no*ody o*:ects% 2. +ury a. At trial@=re-(erdict; FRE and $E$ are the "AME; A :uror )ay not testify as a witness at trial in front of the )e)*ers of the :ury% b. After trial@=ost-(erdict; (1) FRE$ +uror can only ro(ide infor)ation regarding OD#"4DE influences that )ay ha(e affected the (erdict& *ut cannot testify as to how those influences affected their reasoning% (2) CEC$ More e7ansi(e than FRE; +urors can ro(ide infor)ation on ANY i/"%o"%ie(ies o% inluences (ha( /a# ha!e aec(ed (he Du%o%s& *ut still cannot testify as to how those influences affected their reasoning% E. Re%eshin, Recollec(ion 1. Fritings a. FRE$ 4f a witness uses a writing to refresh her recollection rior to testifying& the ad(erse arty is entitled to ha(e the writing roduced only if the court in its discretion deter)ines that roduction of the docu)ent is necessa%# in (he in(e%es(s o Dus(ice% b. CEC$ #he writing /us( *e roduced at the hearing uon the re5uest of the oosing arty% (1) E7cetion; 4f the writing is not in the ossession or control of the witness or the arty eliciting the testi)ony% E8AM TIP$ Fith refreshing recollection& loo' to see if hearsay e7cetion for recorded recollection co)es into lay% BO#< FRE and $E$ ro(ide e7cetion when the witness has insufficient resent recollection to testify fully and accurately *ut recorded the facts at the ti)e or soon after the occurrence% #he written state)ent does not co)e in1 the witness )ust instead read it to the :ury& unless ad(erse arty offers state)ent as e7hi*it% #he ad(erse arty has the right to (.! insect the recorded ast recollection1 (,! use it in cross-e7a)ination1 (0! show it to the :ury for co)arison1 and (H! introduce rele(ant ortions of it into e(idence% 2. $E=#4ON; 4f character is an essential ele)ent of clai) or defense (e%g% defa)ation& child custody& negligent suer(ision!% NOTE$ E(idence of character )ay *e ad)issi*le when offered for a urose other than to show conduct in confor)ity with oneAs character- re)e)*er MIMIC% C. $i(il $ases; M Mo(i!e I Iden(i(# M A0sence o Mis(a1e I Iden(i(# C Co//on Plan o% Sche/e #his includes 'nowledge& oortunity& and rearation% 10 1. FRE$ ONE ADD4#4ONAL E>$E=#4ON where defendantAs character can *e used to ro(e conduct in confor)ity; In a case where clai) is *ased on seAual assaul( o% child /oles(a(ion& defendantAs rior acts of se7ual assault or child )olestation are ad)issi*le to ro(e defendantAs conduct in this case% 2. CEC$ No additional e7cetions% D. $ri)inal $ases; 1. 9ene%al Rule on E!idence o Deendan(Es Cha%ac(e%$ Dnder *oth FRE and $E$& the door to using character e(idence to ro(e defendantAs conduct is $LO"ED at start of case% #he rosecution cannot *e the first to introduce character e(idence& *ut if Defendant O=EN" the door *y introducing character e(idence M E4#$E=#; (1) =ast acts with other eole to show that defendant was not the source of se)en or in:ury% (2) =ast acts with defendant that tend to show consent% (3) 4f e7clusion of e(idence would (iolate any constitutional right of the defendant% 6. Deendan(Es Pas( SeAual Conduc( (Re(iew of rules discussed a*o(e! a. FRE$ Ad)issi*le in cri)inal se7ual assault or child )olestation cases1 Ad)issi*le in ci(il cases of se7ual assault or child )olestation% b. CEC$ Ad)issi*le in cri)inal cases where defendant accused of se7ual assault& child )olestation& do)estic (iolence& or elder a*use% INADMISSI.LE IN CIVIL CASES. (1) "u*:ect to *alancing under "ection 0C,% V. IMPEACFMENT OF WITNESSES 4)each)ent )eans calling into 5uestion a witnessAs credi*ility% #here are se(eral )ethods to i)each including; (.! $ontradiction (,! =rior 4nconsistent "tate)ent (0! Bias& 4nterest& or Moti(e (H! =rior $on(ictions (C! =rior Bad Acts A. I/"each/en( .# Con(%adic(ion$ "i)ly )eans introducing e(idence or testi)ony that contradicts what witness said% E8AMPLE$ Fitness testifies the house had a green e7terior% #esti)ony can *e i)eached *y another witness who testifies the house had a *lue e7terior% 14 .. I/"each/en( .# P%io% Inconsis(en( S(a(e/en(s$ NOTE$ Re)e)*er if state)ent offered only to i)each  No hearsay concerns% 4f state)ent is *eing offered for truth of )atter asserted therein& need to consider hearsay (see )ore in deth discussion of hearsay issues *elow%! 1. FRE$ 4f rior inconsistent state)ent gi(en under oath at trial or deosition& it is eAcluded fro) hearsay rule and can *e ad)itted to ro(e truth of facts asserted% 2. CEC$ "tate)ent is considered hearsay *ut there is a hearsay eAce"(ion for ALL inconsistent state)ents )ade *y witnesses& whether or not )ade under oath& and therefore& state)ent can *e ad)itted to ro(e truth of facts asserted% E8AMPLE$ Fitness stated re(iously to a third arty that the house had a in' e7terior *ut at trial testified that the e7terior was green% FRE$ =rior inconsistent state)ent to third arty can *e used to i)each witnessAs testi)ony *ut NO# to ro(e that the house was in'& *ecause state)ent was not )ade under oath% CEC$ =rior inconsistent state)ent to third arty can *e used to i)each witnessAs testi)ony AND to ro(e that the house was in'% E8AMPLE$ Fitness stated in his deosition that the house had a in' e7terior *ut at trial testified that the e7terior was green% FRE$ =rior inconsistent state)ent to third arty can *e used to i)each witnessAs testi)ony AND to ro(e that the house was in'% CEC$ =rior inconsistent state)ent to third arty can *e used to i)each witnessAs testi)ony AND to ro(e that the house was in'% C. Reha0ili(a(ion o Wi(ness ?sin, P%io% Consis(en( S(a(e/en(s 1. FRE$ =rior consistent state)ents are ad)issi*le to REBD# a charge of recent fa*rication or i)roer influence& )oti(e or *ias% 2. CEC$ =rior consistent state)ents are ad)issi*le to reha*ilitate a witnessAs credi*ility that has *een attac'ed with a rior inconsistent state)ent or with a charge of *ias or recent fa*rication& *ut ONLY 4F rior state)ent was )ade BEFORE incident gi(ing rise to the challenge to the witnessAs credi*ility (e%g% the rior inconsistent state)ent& the *ias& or the clai)ed recent fa*rication%! Te/"o%al li/i(a(ion. D. I/"each/en( .# P%io% Con!ic(ions 1. Felon# Con!ic(ions a. FRE$ (1) False S(a(e/en(s; Felony con(ictions in(ol(ing alse s(a(e/en(s (er:ury& fraud! are ad)issi*le with no *alancing needed eAce"( for old con(ictions- o!e% G; #ea%s old% 15 (a) O(er .- years; Balancing under FRE 2-3(*! not inad)issi*le to i)each unless the ro*ati(e (alue su*stantially outweighs the re:udicial effect (re(erse H-0!% (2) Not false state)ents; Felony con(ictions NO# in(ol(ing false state)ents )ay *e ad)issi*le *ut su*:ect to the Rule :;< 0alancin, (es( (i%e%& e7cluded if the ro*ati(e (alue is su*stantially outweighed *y unfair re:udice!% b. CEC$ (1) Mo%al Tu%"i(ude$ All felonies in(ol(ing 8)oral turitude9 are ad)issi*le *ut court MD"# do Rule <=> 0alancin, (es( to )a'e sure the danger of unfair re:udice does not su*stantially outweigh the ro*ati(e (alue% (2) No )oral turitude in(ol(ed-4NADM4""4BLE% Prop 8 does not make these crimes admissible in criminal cases because crimes must involve “moral turpitude” to be relevant for impeachment% (a) Moral #uritude N readiness to do e(il .! Most se7 cri)es ,! $ri)es of dishonesty (er:ury& grand theft& recei(ing stolen roerty& ta7 e(asion! 0! $ri)es of (iolence (assault& *attery& )urder& )anslaughter& rae& sousal a*use& (andalis)! H! $ri)es against roerty (*urglary& arson! C! Other serious cri)es (escae& drug sales& hit and run& 'idnaing& e7tortion& statutory rae! (b) $ri)es NO# in(ol(ing )oral turitude .! $ri)es in(ol(ing negligence or unintentional acts ,! 4n(oluntary )anslaughter 0! Drug ossession (3) No au(o/a(ic G; #ea% (i/e li/i( on cri)es li'e under FRE% But $E$ allows courts to *alance& which er)its consideration of any factor *earing on ro*ati(e (alue& including age of con(iction% E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged offense% =rosecution wants to offer e(idence that Defendant re(iously was con(icted of felony er:ury% FRE$ Ad)issi*le to i)each defendant with no *alancing% "te .; =rior con(iction in(ol(ing dishonestyO YE" 16 "te ,; Not )ore than .- years oldO YE" No "te 0@*alancing Ad)issi*le% CEC$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing% "te .; Moral #uritudeO YE"  go to ste ,@*alancing% "te ,; Balance-does danger of unfair re:udice su*stantially outweigh ro*ati(e (alueO NOTE$ Fhen DEFENDAN# is the witness *eing i)eached& need to consider ossi*ility that rior con(iction )ay *e used@interreted as character e(idence& tending to ro(e defendant acted in confor)ity with character& and need to weigh this as otential unfair re:udice co)ared to ro*ati(e (alue (*alancing test!% #he cri)e with which defendant is charged in current case will *e i)ortant; 4f Defendant charged with assault and rior con(iction *eing used for i)each)ent is also for assault& higher ro*a*ility of unfair re:udice% E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged offense% =rosecution wants to offer e(idence that Defendant was con(icted of felony er:ury in .332% FRE$ =ro*a*ly 4NADM4""4BLE% "te .; =rior con(iction in(ol(ing dishonestyO YE" "te ,; Not )ore than .- years oldO NO  need to *alance& not auto)atically ad)issi*le% "te 0; #he %e!e%se *alancing test; 4nad)issi*le to i)each unless the ro*ati(e (alue su*stantially outweighs the re:udicial effect% Burden on "%o"onen( o e!idence in re(erse *alancing test to show )ore ro*ati(e than re:udicial  ro*a*ly 4NADM4""4BLE% CEC$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing% "te .; Moral #uritudeO YE"  go to ste ,@*alancing% "te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e (alueO Re)e)*er& no auto)atic .- year ti)e li)it on cri)es li'e under FRE% But $E$ allows courts to *alance& which er)its consideration of any factor *earing on ro*ati(e (alue& including age of con(iction% E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged offense% =rosecution wants to offer e(idence that Defendant re(iously was con(icted of assault% FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing% "te .; =rior con(iction in(ol(ing dishonestyO NO  go to ste ,@*alancing% 17 "te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e (alueO CEC$ =ossi*ly ad)issi*le to i)each defendant% "te .; Moral #uritudeO YE"  go to ste ,@*alancing% "te ,; Balance- does danger of re:udice su*stantially outweigh ro*ati(e (alueO E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged offense% =rosecution wants to offer e(idence that Defendant re(iously was con(icted of felony drug ossession% FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing% "te .; =rior con(iction in(ol(ing dishonestyO NO  go to ste ,@*alancing% "te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e (alueO CEC$ 4NADM4""4BLE to i)each defendant% "te .; Moral #uritudeO NO  4nad)issi*le% 2. Misde/eano% Con!ic(ions a. FRE$ (1) False S(a(e/en(s; )isde)eanor con(ictions in(ol(ing alse s(a(e/en(s (er:ury& fraud! are ad)issi*le with no *alancing needed eAce"( for old con(ictions- o!e% G; #ea%s old% Same rule as felony convictions. (a) O(er .- years; Balancing under FRE 2-3(*! not inad)issi*le to i)each unless the ro*ati(e (alue su*stantially outweighs the re:udicial effect (re(erse H-0!% (2) Not false state)ents; Misde)eanor con(ictions NO# in(ol(ing false state)ents are 4NADM4""4BLE% b. CA$ $E$ )a'es )isde)eanor con(ictions inad)issi*le BD# =ro ? *rings the) *ac' into lay for $R4M4NAL cases only% NOTE$ #his is the rule under $alifornia state law-=ro ?- *ut it is NO# ursuant to the $alifornia E(idence $ode% #hat is why this section has state rule denoted *y 8$AL9 and not 8$E$%9 (1) $i(il cases; 4NADM4""4BLE (=ro ? has no alication to ci(il cases%! (2) $ri)inal cases; =ro ? in lay% (a) Mo%al Tu%"i(ude$ All felonies in(ol(ing 8)oral turitude9 are ad)issi*le *ut court MD"# do Rule <=> 0alancin, (es( to )a'e sure the danger of unfair re:udice does not su*stantially outweigh the ro*ati(e (alue% (b) No )oral turitude in(ol(ed-4NADM4""4BLE% Prop 8 does not make 18 these crimes admissible in criminal cases because crimes must involve “moral turpitude” to be relevant for impeachment. Same rule as felony convictions. E8AMPLE$ 4n a ci(il action for negligence& Defendant testifies a*out the recautions he too' leading u to the accident resulting in in:ury to =laintiff% =laintiff wants to offer e(idence that Defendant re(iously was con(icted of )isde)eanor charge of falsifying infor)ation on loan docu)ents% FRE$ Ad)issi*le to i)each defendant% "te .; =rior con(iction in(ol(ing dishonesty and not )ore than .- years oldO YE" No "te ,@*alancing CEC$ 4NADM4""4BLE to i)each defendant% Misde/eano% con!ic(ions inad/issi0le in CIVIL cases. E8AMPLE$ Defendant is *eing rosecuted for *urglary and testifies a*out his wherea*outs on the night in 5uestion% =rosecution wants to introduce )isde)eanor con(iction for etty theft% FRE$ 4NADM4""4BLE to i)each defendant% "te .; =rior con(iction in(ol(ing dishonesty and not )ore than .- years oldO NO No "te ,@*alancing 4NADM4""4BLE; Because it is a misdemeanor con(iction not in(ol(ing dishonesty& it is not ad)issi*le to i)each% NOTE$ Many theft cri)es do NO# in(ol(e dishonesty (theft& ro**ery& *urglary! *ut theft cri)es in(ol(ing so)e lying (e)*eIIle)ent& theft *y false retenses! do in(ol(e dishonesty% CAL$ =ossi*ly ad)issi*le& su*:ect to *alancing test% Re)e)*er& under E(idence code )isde)eanors are inad)issi*le to i)each BD# =ro ? )a'es all rele(ant e(idence ad)issi*le for $R4M4NAL cases only% "te .; Moral #uritudeO YE"  go to ste ,@*alancing% "te ,; Balance- does danger of re:udice su*stantially outweigh ro*ati(e (alueO =re:udicial and ro*ati(e considerations; (.! Danger of rior con(iction *eing used as i)roer character e(idence since theft cri)e si)ilar to *urglary and witness in 5uestion is defendant1 (,! consider age of the con(iction% 3. ?se o EA(%insic E!idence$ Dnder *oth FRE and $E$& if the con(iction is otherwise ad)issi*le& e7trinsic e(idence can *e used to ro(e the con(iction% 19 E. I/"each/en( .# P%io% .ad Ac(s 1. FRE$ a. T%u(hulness$ Must *ear on truthfulness or lac' thereof of witness% b. $i(il AND cri)inal cases% c. "u*:ect to *alancing test% d. NO e7trinsic e(idence& can 5uestion witness on cross-e7a)ination% 2. CAL$ =rior *ad acts@non-con(ictions are inad)issi*le to i)each under E(idence $ode1 BD# =ro ? )a'es the) ad)issi*le in cri)inal cases& if they are rele(ant% a. Mo%al Tu%"i(ude$ #o *e rele(ant the )isconduct )ust *e act of )oral turitude% b. Only $R4M4NAL cases% Prop 8 has no application to civil cases. c. "u*:ect to *alancing test% d. EA(%insic e!idence and cross-e7a)ination can *e used% E8AMPLE$ 4n a ci(il action for negligence& Defendant testifies a*out the recautions he too' leading u to the accident resulting in in:ury to =laintiff% =laintiff wants to offer e(idence that Defendant lied on his DMB alication saying he ne(er suffered an eiletic seiIure% FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test% "te .; =rior Bad Act in(ol(ing truthfulnessO YE" "te ,; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e (alueO Me(hod$ =laintiff can as' Defendant on cross-e7a)ination 8DidnAt you lie on DMB alicationO9 CAL$ 4NADM4""4BLE to i)each defendant% E(idence code does not recogniIe non-con(iction *ad acts as er)issi*le )ethod of i)each)ent and =ro ? has no alication to ci(il cases% E8AMPLE$ Defendant is *eing rosecuted for securities fraud and denies falsifying any docu)ents% =rosecution wants to offer e(idence that Defendant lied on his DMB alication saying he ne(er suffered an eiletic seiIure% Fhen as'ed whether he lied& Defendant says 8no%9 =rosecution wants to offer into 20 e(idence DMB records and DefendantAs )edical records% FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test% "te .; =rior *ad act in(ol(ing truthfulnessO YE" "te ,; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e (alueO Me(hod$ =rosecution can as' Defendant on cross-e7a)ination 8DidnAt you lie on DMB alicationO9 BD# when Defendants says 8No&9 rosecution is stuc' with that answer% No eA(%insic e!idence er)itted to ro(e lying on DMB alication% CAL$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test% "te .; 4s this a cri)inal caseO YE"% =ro ? can ro(ide for i)each)ent with non-con(ictions *ut only alies to cri)inal cases% "te ,; =rior *ad act in(ol(ing )oral turitudeO YE" "te 0; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e (alueO Me(hod$ =rosecution can as' Defendant on cross-e7a)ination 8DidnAt you lie on DMB alicationO9 Fhen Defendants says 8No&9 rosecution is a*le to introduce eA(%insic e!idence (DMB records& )edical records! to ro(e the rior *ad act% E8AMPLE$ Defendant is *eing rosecuted for securities fraud and denies falsifying any docu)ents% =rosecution wants to offer e(idence that Defendant stole fro) a re(ious e)loyer% FRE$ 4NADM4""4BLE% "te .; =rior *ad act in(ol(ing truthfulnessO NO- theft does not in(ol(e truthfulness% 4NADM4""4BLE CAL$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test% "te .; 4s this a cri)inal caseO YE"% =ro ? can ro(ide for i)each)ent with non-con(ictions *ut only alies to cri)inal cases% "te ,; =rior *ad act in(ol(ing )oral turitudeO YE"- )oral turitude is *roader than federal rule a*out truthfulness% "te 0; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e (alueO NOTE$ Re)e)*er that where Defendant is the witness& rior *ad act introduced for i)each)ent has added ris' of undue re:udice as *eing used as i)roer character e(idence- trier of fact )ay *elie(e *ecause Defendant stole *efore he is )ore li'ely to co))it securities fraud% #he )ore si)ilar the charged offense and the rior *ad act (or con(iction!& the higher the ris' of undue re:udice% 21 VI. FEARSAY A. P%eli/ina%# Ma((e%s 1. Deini(ion$ (.! Out of court state)ent (,! offered for the truth of the )atter asserted% 2. .u%den$ a. FRE$ O*:ecting arty has *urden to ro(e it is hearsay% b. CEC$ =roonent of the e(idence has *urden to ro(e it is not hearsay% 3. EAclusions@EAce"(ions$ a. FRE$ Both e7clusions (nonhearsay! and e7cetions to the hearsay rule% b. CEC$ Only e7cetions to the hearsay rule% 4. P%o" 3$ #ERNAL heno)ena ercei(ed *y the declarant% Dnder FRE& conte)oraneous state)ents reflecting the declarantAs state of )ind regarding his own conduct are not considered hearsay& so no e7cetion needed% 3. S(a(e/en( Desc%i0in, Inlic(ion o% Th%ea( o Ph#sical A0use$ The OC 28 Exception- Calio%nia Onl# a. Re5uire)ents; (1) DNABA4LABLE declarant1 (2) "tate)ent descri*ing or e7laining infliction or threat of hysical a*use1 (3) Made at or near ti)e of in:ury or threat1 (4) 4n writing& recorded& or )ade to olice or )edical rofessionals1 (5) Dnder trustworthy circu)stances% b. #his e7cetion was *asis for ad)itting calls fro) Nicole "i)son to the do)estic a*use shelter in the ci(il trial of O+ "i)son% c. C%awo%d@Con%on(a(ion Clause Conside%a(ion$ 4f a state)ent is )ade to olice and could *e considered 8testi)onial&9 raise the $rawford issue- the- state)ent could still *e inad)issi*le& e(en though it 5ualifies for the O+ hearsay e7cetion& *ecause it )ay (iolate the confrontation clause under $rawford% E8AMPLE$ Girlfriend calls 3.. and screa)s& 8My *oyfriend :ust ulled a gun on )eL9 Defendant (*oyfriend! is later charged with assault% Girlfriend dies fro) in:uries% =rosecution wants to ad)it 3.. tae to ro(e Defendant had a gun% FRE$ Ad)issi*le% #his li'ely 5ualifies under two e7cetions; E7cited Dtterance; (.! relates to a startling e(ent or condition& and (,! was )ade sontaneously while the declarant was under the stress of e7cite)ent% =resent "ense 4)ression; "tate)ent )ade *y the declarant descri*ing or e7laining an e(ent or condition )ade while or i))ediately after ercei(ing it% #he word 8:ust9 indicates state)ent is i))ediately after ercei(ing e(ent% CEC$ Ad)issi*le as "ontaneous "tate)ent e7cetion- (.! urorts to narrate& descri*e or e7lain an act& condition& or e(ent ercei(ed *y the declarant AND (,! was )ade sontaneously while the declarant was under the stress of e7cite)ent caused *y such ercetion% Note that the narrower $E$ $onte)oraneous state)ent e7cetion would NO# aly here *ecause declarant is not descri*ing her own conduct% 4t could ossi*ly *e ad)issi*le under the O+ e7cetion as well- see discussion under ne7t e7a)le% E8AMPLE$ Girlfriend calls 3.. and cal)ly says& 8An hour ago& )y *oyfriend ulled a gun on )e%9 Defendant (*oyfriend! is later charged with assault% Girlfriend dies fro) in:uries% =rosecution wants to ad)it 3.. tae to ro(e 29 Defendant had a gun% FRE$ 4NADM4""4BLE% E7cited Dtterance; Does not 5ualify% Ford 8cal)ly9 indicates declarant was NO# under the stress of e7cite)ent% =resent "ense 4)ression; Does not 5ualify- 8an hour ago9 indicates that the state)ent was not )ade while or i))ediately after ercei(ing the e(ent% CEC$ =ro*a*ly ad)issi*le under the O+ e7cetion% Re5uire)ents; (.! DNABA4LABLE declarant- girlfriend died1 (,! "tate)ent descri*ing or e7laining infliction or threat of hysical a*use1 (0! Made at or near ti)e of in:ury or threat- an hour ro*a*ly 5ualifies as 8at or near91 (H! 4n writing& recorded& or )ade to olice or )edical rofessionals- 3.. call 5ualifies1 (C! Dnder trustworthy circu)stances% 4s there a $rawford@$onfrontation $lauses concern hereO No& *ecause state)ent was to 3..& not to olice or rosecutor and therefore not 8testi)onial9 so $rawford@$onfrontation $lause analysis is inalica*le& *ut )a'e sure to raise $rawford concern in these conte7ts% C. S(a(e/en(s o Men(al o% Ph#sical Condi(ion 1. EAce"(ion o% decla%a(ion o (hen eAis(in, "h#sical o% /en(al condi(ion$ a. Dnder *oth FRE and $E$& state)ent of declarantAs then e7isting hysical or )ental condition or state of )ind (=RE"EN# #EN"E! is ad)issi*le to show the condition or state of )ind% No need to show declarant una(aila*le% b. "tate)ent descri*ing =A"# hysical or )ental condition- as )e)ory or *elief - is not ad)issi*le to ro(e the fact re)e)*ered or *elie(ed under this e7cetion% 2. EAce"(ion o% s(a(e/en( o "as( o% "%esen( /en(al o% "h#sical condi(ion /ade o% /edical dia,nosis o% (%ea(/en(. a. FRE$ A state)ent descri*ing "as( OR "%esen( )ental or hysical condition of the declarant or of another erson is ad)issi*le if )ade for and ertinent to /edical dia,nosis o% (%ea(/en(% No need to show declarant una(aila*le% b. CEC$ A state)ent of ast OR resent )ental or hysical condition is ad)issi*le if )ade for )edical diagnosis or treat)ent& *ut onl# i &G' (he decla%an( was G> #ea%s old o% #oun,e% when s(a(e/en( was /ade AND &>' desc%i0in, an ac( o child a0use o% ne,lec(. No need to show declarant una(aila*le% $his e%ception is much more narro! than F#" e%ception. 3. S(a(e/en( o decla%an(Es PAST "h#sical o% /en(al condi(ion ad/issi0le (o "%o!e condi(ion4 i a( issue in (he case. Calio%nia onl#. a. 4ncludes a state)ent of intention% 30 b. No re5uire)ent that state)ent *e )ade for )edical diagnosis or treat)ent% c. Declarant )ust *e DNABA4LABLE% E8AMPLE$ +ac' :u)s out a window& and *efore he does so he says 84A) sic' of life and 4A) going to 'ill )yself%9 4nsurance co)any wants to introduce this e(idence to ro(e +ac' co))itted suicide and it was not an accidental death% FRE$ Ad)issi*le as declaration of then e7isting )ental or hysical condition% CEC; Ad)issi*le as declaration of then e7isting )ental or hysical condition% E8AMPLE$ +ac' falls out a window% "u*se5uently he goes to see a doctor and states& 8My shoulder was 'illing )e last wee' *ecause 4 fell out of the window due to a faulty latch%9 FRE$ Ad)issi*le as declaration of ast or resent )ental or hysical condition )ade for )edical diagnosis or treat)ent% CEC; 4nad)issi*le% $anAt 5ualify as then e7isting hysical condition e7cetion& not discussing then e7isting condition% Dnder $E$& to 5ualify for e7cetion for ast )ental or hysical condition )ade for )edical diagnosis or treat)ent& declarant )ust *e a child under ., years of age in the case of child a*use or neglect% #hat is not the case here% 4f +ac'As condition was at issue in the case AND +ac' were una(aila*le& the state)ent could *e ad)issi*le under $E$ as state)ent of declarantAs ast hysical or )ental condition ad)issi*le to ro(e condition *ut we ha(e no indication that +ac' is una(aila*le or whether the condition is at issue in this e7a)le% E8AMPLE$ +ac' was tal'ing to his neigh*or and said 8Last wee' 4 was really *lue and sic' of life and wanted to 'ill )yself%9 +ac' later died falling out of a window and insurance co)any wants to introduce this e(idence to ro(e +ac' co))itted suicide and it was not an accidental death% FRE$ 4NADM4""4BLE% "tate)ent of =A"# )ental or hysical condition& so it is not ad)issi*le as then e7isting state)ent e7cetion% "tate)ent not )ade for )edical diagnosis or treat)ent& so not ad)issi*le under that e7cetion% CEC$ Ad)issi*le as state)ent of declarantAs =A"# hysical or )ental condition ad)issi*le to ro(e condition% #here is no re5uire)ent that the state)ent *e )ade for )edical diagnosis or treat)ent and +ac' is una(aila*le and his )ental condition is at issue in the case% B. .usiness Reco%ds 31 1. Dnder *oth FRE and $E$& there are H re5uire)ents; a. #he *usiness record )ust *e )ade in the regular course of *usiness (and not )ade solely in anticiation of litigation!% b. 4t )ust *e )ade at or near the ti)e of )atters descri*ed& *y a erson with 'nowledge of the facts in that record% c. $ustodian testifies to the recordAs identity and its )ode of rearation% d. 4ndicia of trustworthiness in )ethod and ti)e of rearation of record% 2. No need to show declarant una(aila*le% 3. Re)e)*er that a*sence of records can *e used to show so)ething did not haen% 4. FRE$ Oonent of e(idence has *urden to ro(e *usiness record does not )eet re5uire)ents *y reonderance of e(idence% 5. CEC$ =roonent of e(idence has *urden to ro(e *usiness record )eets all re5uire)ents *y a reonderance of e(idence% L. Pu0lic Reco%ds$ "i)ilar foundation to *usiness records *ut do not need to *e )ade at or near ti)e of )atters descri*ed and not in regular course of *usiness& instead; 1. FRE$ a. Ad)issi*le if (1) record descri*es the acti(ities or olicies of the office1 (2) record descri*es )atters o*ser(ed ursuant to duty i)osed *y law (*ut not olice reorts in cri)inal cases!1 or (3) record contains factual findings resulting fro) an in(estigation )ade ursuant to authority granted *y law& unless untrustworthy (not a(aila*le in cri)inal cases!% 2. Oonent of e(idence has *urden to ro(e *usiness record does not )eet re5uire)ents *y reonderance of e(idence% 3. CEC$ a. Dnli'e FRE& $E$ does not li)it the use of official reorts in cri)inal cases& so there is no eAclusion o %e"o%(s con(ainin, /a((e%s o0se%!ed 0# "olice oice%s and o(he% law eno%ce/en( "e%sonnel. b. =roonent of e(idence has *urden to ro(e *usiness record )eets all re5uire)ents *y reonderance of e(idence% M. P%io% S(a(e/en( o Iden(iica(ion$ 1. FRE and CEC$ Out of court state)ent *y a witness identifying the accused is ad)issi*le if; (.! state)ent of identification was )ade after ercei(ing erson AND (,! declarant testifies at trial and is su*:ect to cross-e7a)ination a*out the state)ent% 32 NOTE$ Loo' out for rior out-of-court identifications *y a witness who is NO# testifying at the current trial and therefore is not su*:ect to cross-e7a)ination% #his hearsay e7e)tion or e7cetion cannot aly if witness is not testifying at trial% 2. FRE$ Nonhearsay 3. CEC$ a. ; #ea%s old. b. CEC$ Docu)ent )ust *e /o%e (han <; #ea%s old. 2. Sel)Au(hen(ica(in, Docu/en(s$ $ertain docu)ents are self authenticating% a. FRE$ 4ncludes certified coies of u*lic docu)ents (deeds!& ac'nowledged docu)ents& official u*lications (go(ern)ent a)hlets!& newsaers& eriodicals& *usiness records& and trade inscritions& certified coies of *usiness records% O O%i,inal W%i(in, 4s the writing the originalO 4s the original re5uiredO P P%i!ile,ed 4s the writing ri(ilegedO R Rele!anc# Is the writing releant! A Ac1nowled,ed Docu/en(s #his category refers to notariIed docu)ents& i%e%& docu)ents acco)anied *y a certificate of ac'nowledg)ent e7ecuted in the )anner ro(ided *y law% F Fea%sa# Is the writing hearsa" #r d#es it c#ntain $%lti&le hearsa"! 37 b. CEC$ ONLY ce%(iied co"ies o "u0lic %eco%ds such as Dud,/en(s. Other docu)ents that are self-authenticating under FRE& )ust *e indeendently authenticated under $E$% .. .es( E!idence@Seconda%# E!idence Rule$ Rule alies only where e(idence is offered to ro(e the contents of a writing (*roadly defined as tangi*le rocess to record words& ictures& and sounds -- includes recording& (ideo& hoto& $D@DBD@M=0%! #he rule re5uires roof of contents with original& *ut with )any e7cetions% "o the real 5uestion *eco)es; other than the original& what tangi*le e(idence is ad)issi*le to ro(e contents of a writing& recording& (ideo& hoto % % %O 1. FRE$ Dulicates ad)issi*le% A 8dulicate9 is a coy of an original roduced *y sa)e i)ression that roduced the original or *y a )achine (e%g%& hotocoier& ca)era& car*on coy!% '$ 1. Re)e)*er that the final ste in any analysis whe%e e!idence is o(he%wise ad/issi0le is to consider the courtAs ower to e7clude the e(idence if the ris' of unfair re:udice su*stantially outweighs the ro*ati(e (alue of the e(idence% #his )eans that if e(idence is e7cluded under the hearsay rule or on the grounds of ri(ilege& you do NO# need to discuss whether it can *e e7cluded under the *alancing act% But if there ARE no other grounds uon which to e7clude the e(idence& consider the ris' of unfair re:udice as co)ared to the ro*ati(e (alue of the e(idence% 41