I. EVIDENCE OUTLINE – WILLIAMS

II. INTRODUCTION TO EVIDENCE

A. Making the record1. There are two levels in a trial

a. To win the caseb. To preserve the record for appeal. The transcript and pleading papers will be used.

i. Included are all: pleadings, all papers filed during the course of litigation, the verbatim record of the proceedings, and all tangible evidence.

B. Leading Questions1. Definition : Leading question are ones that suggest their own answers.2. Basic rule : Cannot ask leading questions during direct examination (where you are

examining your own witness), but can ask them during cross-examination (where you are examining the other party’s witness).

3. Rationale : We want the witness to testify. Do not want to suggest to the jury that the witness cannot answer for himself, counsel will only object and say that you are talking as much to the jury as to the court.

4. Exceptions : Generally, have to get the court’s permission before you ask the leading question. Otherwise you can generally ask leading questions:a. Preliminary questions that do not go to the heart of the matter/are not disputed. Ex:

name, addressb. When the witness is a child (under the age of 12?)c. When witness is mentally impaired or memory impaired (maybe head trauma; have to

inform the court of establish this problem before the court)d. Hostile witnesses – have to establish this problem to the court (like Enron people now)

5. CALIFORNIA 767a. Leading Questions, except under “special circumstances” where justice otherwise

require:i. May not be asked during direct or re-directii. May be asked during cross or re-crossiii. May be asked of child under 10 in certain cases, in cases involving certain penal

code sections6. FEDERAL 611(c)

a. Leading questions:i. Should not be used during direct “except as necessary”ii. Should usually be allowed during crossiii. Should be allowed for hostile witnesses, adverse parties or adverse witnesses

C. Foundation1. Basic rule : Must establish authenticity and relevance to introduce witnesses and evidence.

Example: establish to the satisfaction of the judge that is the gun that was used by X.2. If some rule of evidence makes something admissible, must establish that it meets the

requirements of the exception.3. Tangible evidence :

a. Mark the gun for identification, label it exhibit X, so that the court knows what is being discussed and for appeal

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b. Lay the foundation for the evidence – use expert to establish that it is the gunc. Introduce it into evidenced. Different types of tangible evidence:

i. Real evidence = all physical, real evidenceii. Demonstrative evidence = material used for explanatory purposes only (charts)iii. Writings = must be authenticated by direct testimony, notice and request for

authentication, circumstantial evidence.

D. Objections1. Basic rule : You can get whatever you want into evidence as long as opposing counsel does

not object.2. Waiver of objection : If objectionable evidence is offered an no objection is made bythe

other side, it will be admitted:a. The jury can use it in whatever way they wantb. The objection is waived and cannot be raised on appeal (not a basis for overturning)c. It is rare for judges to object sua sponte (but they can) b/c they are supposed to be

neutral.d. Counsel has an ethical duty to raise objections

3. CALIFORNIA 353 (erroneous admission of evidence); 354 (erroneous exclusion of evidence)

4. FEDERAL 103a. There is no error unless a substantial right of the party is affected.b. Objection to admitting evidence – appears on the recordc. Offer of proof when evidence is excluded – explain what the evidence would have

done d. Prevent jury from hearing inadmissible evidence.

5. Example: a. State v. Jones: This case involved a present sense impression to the hearsay rule. The state

trooper (not the one on trial) testified to the conversation between two truck drivers in two different ways. The first time he testified, he described it using their words. The second time, he narrated the events, and it was no longer a present sense impression. The defense did not object and waived its objection. The appeals court upheld the ruling because: the prosecution would have responded to the objection by explaining why the state trooper did this. The judge identified the opportunity to correct the problem by having the jury disregard the statement and striking it from the record.

E. Offers of Proof1. Basic idea : This happens at two levels in the trial

a. When introducing a piece of evidenceb. When the trial judge sustains an evidentiary objection by the other side and the offering

attorney wants to preserve the record for the appeals court.2. Procedure: The offering attorney will tell the judge:

a. What the evidence would be, tangible or testimonyb. What issues the evidence would be relevant to prove in the case

3. Remember : Must be made outside the earshot of the jury

F. Motion in Limine

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1. A pre-trial motion requesting the court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to the moving party such that limiting instructions cannot prevent misuse or predispositional effect on the jury. The motion is designed to avoid admission into evidence of matters which are irrelevant, inadmissible or prejudicial.

2. It is very valuable becausea. The record is upfront and intactb. If the motion is granted, the prosecution is prohibited from mentioning anything

regarding that evidence, and you will not appear to be hiding anything from the jury.

III. ANALYSIS FORMAT FOR RELEVANCE AND HEARSAY

A. Is it relevant?1. What proposition is the evidence offered to prove?2. Is the proposition provable in the case?

a. For this just use common sense and logic. Think of the example of the man producing witnesses to testify as to how badly mangled his wife’s body was, and thus suing for emotional trauma. He did not succeed because he was knocked unconscious as a result of accident and did not see wife’s body.

b. Think can the person offering the evidence actually prove that?3. Does the evidence have some tendency or reason to prove or disprove the proposition?

B. Is it hearsay?1. Is it being offered to prove the matter asserted?2. If it is hearsay, is there an exception?

C. Prejudice?1. If it is admissible, is it unfairly prejudicial?

a. In other words, is the evidence’s value worth what it would cost the defendant?

IV. RELEVANCE

A. Definitio n: Relevant evidence has some tendency in reason to prove or disprove a proposition that is properly part of the case. Or an item of evidence is relevant when it makes the truth of an issue at trial more or less probable.

B. Test1. What proposition is the evidence being offered to prove?2. Is the proposition provable in the case?3. Does the evidence have some tendency in reason to prove or disprove the proposition?

Does it “help” the proposition?C. CALIFORNIA

1. CRE 210 Relevant evidence a. Relevant evidence means evidence, including evidence relevant to the credibility of a

witness or hearsay Defendant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action

2. CRE 350 Only relevant evidence is admissible3. CRE 351 Except otherwise provided by statute, all relevant evidence is admissible

D. FEDERAL RULES1. FRE 401

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a. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

2. FRE 402 a. All relevant evidence is admissible, except as otherwise provided by the Constitution,

by Congress, by these rules, or by the Supreme Court. Evidence which is not relevant is not admissible.

E. We are looking for some, any tendency in reason.1. It does not have to be the best evidence and it does not have to be admitted (it can be

relevant but unfairly prejudicial or it could but be inadmissible hearsay).2. Judgment of Solomon (64): Judge orders baby divided into two in order to see which of two women

is the real mother. One woman sacrifices her child in order to let it live and gets custody. The inference is that that real mother would not want to see her child die.a. Hypo one: the losing mother claims that the reaction of the mothers was irrelevant to who is

the biological parent. Proposition: the real mother will sacrifice her rights to the child in order that it not be killed. Does the evidence have some tendency in reason to prove that she is the biological mother? Yes. What would be better evidence? A doctor or midwife who saw the delivery.

b. Hypo two: The losing mother claims that the evidence is wrong. She is a different religion than the other woman and believes that the child will be damned to hell if the other mother raises it, so it is better for the child to die now. Does this destroy the relevancy of the evidence of the mother’s reactions? NO. It still has a tendency to show who would really be the mother. The losing mother can negate the judge’s inference with this religious explanation. But the jury would still get to see the evidence of the mother’s reaction to the thought of splitting her baby in half.

c. Hypo three: The job of the court is to determine which mother would be in the best interest of the child. Now the evidence has greater “probative value.” It has more weight in determining the better parent, versus proving who is the biological parent. The evidence is relevant for both propositions.

3. James Union Paint Case (66)a. Defendant bought two cans of paint. Used the first one and it was defective so does not open

the second can. P sues for payment of the second can of paint. Evidence: defective first can of paint to show he should not have to buy the second can of paint. This has some tendency in reason. Even though the first can does not guarantee that the second can is bad. Common sense would tell us not to use the second can. Better evidence would be test the second can of point or to get other customer’s testimony.

4. Knapp (71) a. D is convicted of murder. He claims that he killed the victim in self-defense because he had

heard that the victim was violent and had killed an old man in the past. The Defendant appeals the conviction because the prosecution offered evidence that the old man was not murdered but had died naturally. The evidence does not change what the Defendant heard. BUT the evidence has a tendency in reason to show that the D may have heard nothing and thus is was not reasonable to act in self-defense.

F. The law may make something irrelevant1. Hart (pg. 64)

a. Under CA law, there is an irrebuttable presumption that a child conceived while the mother is living with her husband, is the husband’s child. In a dispute over inheritance, a blood test reveals that the child is not the husband’s child. Is this relevant? NO. The proposition is not properly provable in this case. The law specifically says that you cannot prove paternity in this situation. Rationale: policy behind marriage and child support. The law wants finality, sanctity of a jury verdict. The issue of DNA to undue

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convictions later on. This is different than scientists, who revise theories in order to get to the truth.

G. An entire case can be based on inferences or circumstantial evidence1. The value of evidence moves up when we add other pieces of evidence. The fewer leasp

that the jury has to make, the more chance that the evidence will be let in. The judge, however, may admit something conditionally.

2. Circumstantial evidence = a situation where evidence of a statement may not constitute a fact in issue but may be relevant to the existence of such a fact.

i. Example – A muddy footprint dried in the sun that fits the shoe the defendant wears does not in itself prove the case, but it is sure strong circumstantial evidence that he was walking in that area fairly recently.

b. Soloman case: there is an inference that must be drawn that the mother who sacrifices her custody is the real mother because a real mother would not want her child to be killed.

c. Morgan (69) A woman’s husband is killed. A man wrote the woman a love letter. Is the letter relevant to whether the man killed the husband?i. There are a series of inferences:

The man loved the woman The man wants to be with the woman he loves The man wants to get rid of the husband The man is willing to kill the husband The man actually killed the husband

ii. These inferences are of low probative value. We have to make a lot of assumptions to conclude that the man is a murderer. But the letter is still relevant.

iii. The letter will go up in weight if there is more evidence: threat, murder weapon.H. Evidence can have a low probative value but still be relevant

1. Probative value: this phrase refers to evidence or facts which actually have the effect of proving facts sought; evidence has probative value if it tends to prove an issue.

2. Knapp Hypo (71): Here evidence that the person died of natural causes does not change what D heard, but it has a tendency in reason to suggest the D heard nothing. Even if others testify that they heard the rumor, the evidence would still be relevant. The jury would have to decide whether they believe it. The prosecution could still get the evidence in, but it would have a lower probative value.

I. In making policy judgments, courts can incorrectly declare evidence irrelevant1. Sherrod (72): Police officer shoots victim-suspect who was “reaching for a weapon.” The victim’s

family offers evidence that the victim was unarmed. The court finds it irrelevant and prejudicial to the case against the cop. This case does not fit into our regular analysis. It IS relevant. Provable proposition: the police officer was unreasonable. The fact that the victim was unarmed has a tendency to disprove that the officer could have thought that the victim was reaching for a gun. Then this would go to the jury to decide.

V. BALANCING TEST: PROBATIVE VALUE V. PREJUDICEA. Basic rule = Once you determine that evidence is relevant, apply the balancing test:

1. Determine the probative value or “weight” of the evidence – high to low (is it really good evidence? Would it tend to prove the proposition it was proffered for?)

2. Determine whether the evidence poses a danger of high prejudiceB. CALIFORNIA – 352 Undue Prejudice

1. The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

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C. FEDERAL – 403 Unfair prejudice1. 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.a. Definition = in the law of evidence, unfair prejudice refers to undue tendency to suggest

decision on improper basis; e.g., unfair prejudice is caused by evidence which is likely to arouse emotional response rather than rational response of a jury on an issue.

2. Example: Old Chief (73): D had a prior conviction for serious assault and is charged with law that prohibits felon from carrying a weapon. The prosecution offers evidence of prior conviction. The prior is relevant to the crime. You are only charged with the crime if you were a felon, it is an element of the crime. The D stipulates to the prior conviction because he does not want the jury to hear the details of his prior crime (so he admits to having committed a prior crime, but does not want to give the jury any indication of what his crime was). The prosecution wants to introduce the details – want to invoke their right to to prove the case. The SC applied the balancing test and finds that the evidence would be too prejudicial. The government can prove what they need to without the detail, thus the probative value is low. The jury is more likely to convict the D if they know about his prior conviction. The danger of prejudice is high.

D. All evidence is prejudicial in some way but evidence is only too prejudicial if it leads to a decision based purely on emotion or something else prohibited by law.1. Ballou (83): Victim’s family sues for negligence of car accident. There is an issue over whether the

victim was drunk (contributory negligence). At the trial, the P presents evidence that the victim was not drunk through the testimony of a nurse. The defense present evidence of a blood test. The jury is supposed to infer from the nurse that the blood test was wrong. The court then excludes the blood test. The appeals court reverses. The trial court finds that the blood test is too prejudicial because juries have bad view of alcohol. If the jury found that the victim was drunk, this would lead to a correct result. It would only lead to a decision based on emotion or improper analysis. The court believes that the nurse is credible. This is a matter for the jury!a. RULE from case – In weighing the probative value of evidence against its unfair prejudice, a

court may not determine the credibility of the evidence.

VI. THE RULE AGAINST HEARSAY

A. Definition: Out of Court Statement Offered to Prove the Matter Asserted ThereinB. Rationale: Want to protect the right to cross examine and want to observe the demeanor of the

Declarant.1. Sir Walter Raleigh – (89) This case caused the development of the hearsay rule. Raleigh is accused

of treason. His co-conspirator is in prison and produces a sworn statement that Raleigh is guilty. A witness testifies as to what his co-conspirator said about Raleigh. Raleigh is found guilty on this evidence even though his accuser does not appear in court and is not crossed. Why does this matter? We want to cross him, examine his body language, impeach him, ask if he had a motive to accuse Raleigh, ask about the circumstances of the statement (maybe he was being tortured).

2. State v. English (90) – A husband is convicted of killing his wife. The defense argues that somebody else did it. Another man admitted to the police that he killed the woman on the day after the murder and provides details. He was then released. This man doe not testify at the husband’s trial. The evidence is highly relevant and highly probative. However, under the hearsay rule, it will not be allowed in. The man was in custody – therefore, out of court, and the matter asserted is that he killed the woman. The prosecutor cannot test what the man admitted to. [Note: the man was black, in the south in 1931, it is unlikely that the police would have released him if they had any belief that he was the murderer]

3. Should we abolish this rule?

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a. At one time, the federal rule proposed to abolish the per se hearsay rule, however, this was objected to. It was proposed that evidence would be examined on a case by case basis. There were three problems with this.i. A case by case basis would make it hard to prepare for trial b/c cannot predict what

evidence will be there.ii. Decisions would not be reliable because they would be made quickly – at trial.iii. Once juries heard the evidence, they will credit it.iv. Today’s Hearsay rule: it is a broad rule with a bunch of exceptions.

C. CALIFORNIA 12001. Hearsay evidence is evidence of a statement that was made other than by a witness while

testifying at the hearing and that is offered to prove the matter of truth asserted. Except as provided by law, hearsay evidence is inadmissible.

D. FEDERAL 801(C)1. Hearsay is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.

E. A Declarant who Testifies to his out of court statement Can Still be Hearsay1. Hypo: Williams comes into class and says “I saw the red car run through the stop sign and crash

into the blue car. If the P calls class-members to testify about what Williams said in class, this would be hearsay, b/c we would be reporting on what we heard him say. What if the P calls Williams to the stand to testify as to what he told the class? This would still be hearsay. Williams is testifying to an out of court statement, even though it is his own. He should just say what he saw, not what he told the class. The D needs to be able to ask him: Did you have your glasses on?

F. If An Inference Depends on An Out of Court Statement, then the statement is hearsay.1. Lots of evidence is inferential. IF A then B.2. Hypo: Declarant tells Witness that he is going fishing with X. X ends up dead. Witness will testify

as to what Declarant told him. The inference is that if Declarant went fishing with X, then Declarant killed X. Therefore, the inference depends on an out of court statement, and it is hearsay. Note that an exception to the rule will allow it in, but it is still hearsay.

3. Hypo: The cit of LA is prosecuting landlord for violating rent control laws. A third party announced on a talk radio, that the landlord is a slumlord. The prosecutor brings in three friends who heard the broadcast. This would be hearsay. The inference that he violates rent control is built on the statement that the Defendant is a slumlord, which is an out of court statement.

G. Definition of a Statement1. A statement is an oral assertin, a written assertion or assertive conduct.2. CALIFORNIA 225

a. Statement means “oral or written verbal expression” or nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.

3. FEDERAL 801(A)a. A statement is an oral or written assertion or nonverbal conduct of a person, if it is

intended by the person as an assertion. A preliminary determination will be required to determine whether an assertion is intended, particularly when non-verbal.

4. Non-Human evidencea. Machines and animals do not make statements as defined by FRE 801(a) and CA 225 so

they cannot be hearsay.i. Machines:

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We are not worried about the credibility of a machine The proponent has the burden of establishing that the machine is accurate and

reliable Webster Groves v. Quick (130) – Defendant is convicted of speeding and challenges

evidence of electric timer. The police testified to the reading of the machine, the calibration and tests. Not hearsay.

ii. Animals: Animals can be used as long as the proponent can show training and accuracy. Parrot case: the proponent cannot prove accuracy. The government does well with drug smuggling dogs. Today, there is a general

assumption that if the dog is trained, the evidence is not-hearsay. Rationale: Non-human sources have no motivation to lie. Furthermore, the

human witnesses who relate the “testimony” of the animals can explain the meaning of the non-human “statements” and can be cross-examined about them.

H. Assertive v. Non-Assertive Conduct1. Out of Court Assertive Conduct IS hearsay by definition of the statutes because it is a

statement.a. Example: While driving on the freeway, a man gives you the finger. This is assertive conduct.

It is intended to communicate something.b. Example: Williams points at a person that he thinks attacked him. He has identified the

person. Someone sees him do this. They testify. It is an out of court “statement.”c. Example: Act of pointing to identify a suspect in a lineup. This is clearly the equivalent of

words, assertive in nature, and to be regarded as a statement.2. Out of Court Non-Assertive Conduct IS NOT hearsay by definition of the statute because it

is not a statement.a. Rationale: People are not asserting something when they act in their own self interest.

We assume that people will act in their best interest so we do not need to test their sincerity.

b. Example: It is raining. A person opens his umbrella. This person was not trying to communicate to someone. They were trying to stay dry.

3. Words can be non-assertive conduct.a. Good rule of thumb, commands and questions asked are not assertions, so they are not

considered hearsay.b. Zenni (106) Government agents searched Defendant’s home under a search warrant. They

answered the telephone and heard “Put two bucks on that horse.” These are out of court statements, but they are directions. They are no true or false. The betters do not intend to communicate that the Defendant takes bets. They just want to place a bet. There is simply no assertion in the statement. A majority of courts follow this rule.

4. Silence is non-assertive conducta. Silver v. NY Central RR (115) – P sued RR because while the train was grounded, the

temperature was too cold and harmed her. The RR submits evidence that 11 other passengers did not complain. This is non-assertive. There was no intent to communicate by silence. [The silence however is probative because 11 out of the 12 did not complain. It also helped that that porter testified as to what he saw.]

5. Potential Problem: With the Non-Assertive Conduct Analysisa. Rothchild (112) – A man famous for making money knows the outcome of Waterloo. This is

important because it will affect the value of the British Currency. He sells his stocks. This makes the people think that the British have lost. They then sell their stock. The man then buys up all of the stock while it is low and makes a huge killing when the truth comes out. The British have won. This looks like he is acting in accordance to this belief, and not that he meant

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to communicate something. But we know that he intended to communicate that the British had lost.

I. Statements That Are Not Hearsay1. General rule : If the evidence is being used to prove something other than the matter

asserted, the statement is NOT hearsay. The matter asserted refers to the information in the out of court statement. An out of court statement is hearsay if it is being used to prove those facts. a. Estate of Murdoch : The issue is whether a husband or a wife died last in an accident. The

evidence is that the officer heard the husband say “I am alive.” This is an out of court statement. However, it is not being used to prove the matter asserted. It is being used to show that he husband spoke. The jury needs to believe that he said something, because if the spoke, he must have been alive. We only care about being able to believe the truth of what the officer is saying.

b. Hypo: Plaintiff sues Defendant for slander. The Defendant announced on a talk radio, that the Plaintiff is a slumlord. The Plaintiff brings in three friends who heard the broadcast. Each will testify that he heard the broadcast. This is not hearsay. One element of the tort is that the statements of slander must be made. Thus, the friend will be asserting that the slanderous statements were made – not that the Plaintiff is a slumlord.

2. State of Mind: Offered to show effect on someone’s mental state or belief, probable cause, provocation, knowledge or fear.a. Subramaniam v. Public Prosecutor (97) Defendant was found guilty of possession of

ammunition. The defense argued that he was acting under duress. They wanted to submit evidence of what the terrorists had told him. The evidence of these third party statements should be admitted because it goes to state of mind. We only care that the Defendant heard a threat and believed it. We do not care whether it was true or not, only that these threats were said and that they would have the effect of causing someone to act the way the Defendant acted if he believed them. We are not using the evidence to prove that the terrorists were going to kill him or his family, used that way as a means to prosecute the terrorists, they would be hearsay. Therefore, the evidence is not being used to prove the matter asserted.

b. Vinyard v. Vinyard Funeral Home ((98) – Plaintiff sued Defendant for negligence. He slipped on slippery parking lot. The plaintiff submits evidence that people had complained that the lot was slippery. We do not care whether the complaints were true. They are being used to prove that the Defendant had notice. [Is there a danger of unfair prejudice? It could be unless other evidence is submitted to prove that the lot was in fact slippery, in other words to not rely solely on the statements. That was done in this case.]

c. Johnson v . Misericordia Hospital (99) – Plaintiff sued hospital for negligence in hiring and allowing doctor to perform surgery. They offer evidence that other doctors said he was incompetent and had been suspended. The evidence is allowed in because it is being used to prove that there were bad opinions out there and that the hospital should have known. It is not being used to prove that he was a bad doctor, only that the hospital had knowledge. i. Hypo: Can the evidence be used to prove that the doctor was negligent in this surgery?

NO. There would be an inference that he was negligent before, and therefore negligent again. The inference would be built on hearsay.

d. Hernandez (104) – Defendant is found guilty of drug charges. A DEA agent and an informant arrest him in a sting operation. The DEA agent testifies that US Customs had identified the Defendant as a drug smuggler. This is hearsay because it is being used to prove the matter asserted. The prosecution wants the jury to infer that because US customs said he was a drug smuggler, he was a drug smuggler. The Defendant claims that he was set up by an informant. The prosecution argues that they submitted the evidence to show the DEA agent’s state of mind.

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However, this is not relevant. We do not care about the agent’s state of mind, only the informants (to make sure he really did set him up.)i. Hypo: The Defendant claims that the DEA agent selected him because he is Latino. Then,

the evidence would not be hearsay because it would be used to show state of mind of why he was selected.

e. Fun-Damental v. Gemmy (102) Fun-Damental made the Toilet Bank. Gemmy then made the Currency Can and sells it for less. Fun-Damental is trying to prove that Gemmy had copied them and that the design of the currency can was confusing people. They offer evidence that their customers complained that they had overpaid for the Toilet Bank. The matter that this evidence asserts is that Fun-Damental was undercutting. This in not how the evidence is being used. The evidence is just being used to show that customers were confused. [Note: this is a perfect example of how the declarant centered approach is wrong. You may think that you need to believe the customers (the out of court declarants). ]

f. Indirect or circumstantial evidence of state of mind is not hearsay. i. Hypo: Geraldo Rivera sued Jerry Springer for stealing the talk show format idea. Springer

claims that theywere friends and shared the idea. Rivera calls two friends to testify that before Springer’s talk show went on the air, Rivera told them that Springer was a son of a bitch. This testimony is going to Rivera’s conception of Springer’s character. If tyring to prove that Springer is bad, then this would be hearsay. But, Rivera can use it as tending to show the nature of their relationship. If they were friends, Rivera would not make that kind of insulting statement. It would have a tendency in reason to disprove that they were friends. This is indirect or circumstantial evidence of state of mind.

3. Independent Legal Significance/Words of Operative Conduct are NOT Hearsay a. Ries v. Bank of Santa Fe (101) – Plaintiff sues bank to recover money that was guaranteed by

the bank. They offer evidence that the bank president made an oral guarantee of money that a third party owed to the plaintiff. The evidence is admissible because under contract law, the fact that the words were spoken created the contract. We do not make a subjective inquiry as to whether they were meant or not. The words have independent legal significance.

b. Hypo: At a wedding, the groom and bride say “I do.” The man later claims that he was joking. Under an objective inquiry, we do not care whether he was joking. We care that he spoke the words.

c. Gift hypos: i. Williams gives a student a water-bottle and says “I am giving you this…” This is

expressing donative intent and as long as it accompanies the transfer, it has independent legal signinficance.

ii. If Williams said “I intend to give you this” before he gave the student the water-bottle, then this would be hearsay. There is no independent legal significance.

J. Danger of Unfair Prejudice1. Basic rule: When evidence can be used for two purposes or is unfairly prejudicial, the court

can order a limiting instruction. The court can also object if the non-hearsay purpose is too prejudicial.

2. CALIFORNIA 3553. FEDERAL RULE 105

A. Johnson v. Misericordia Hospital (99) Plaintiff sued hospital for negligence in hiring and allowing doctor to perform surgery. They offer evidence that other doctors said he was incompetent and had been suspended in order to show that the hospital had knowledge. Is there a danger of unfair prejudice? The evidence suggests that he was a menace to society. The defense should have asked for a limiting instruction.

B. Rhodes (119) Spy communications show that Defendant was recruited as a Russian spy. This is an assertion and is hearsay. Like the Raleigh case, you cannot test the Russian agents credibility. The only way to get it admitted would be to use it to let the jury know that Russian

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agents communicated about the Defendant. There would have to be a limiting instruction. Could maybe white out the direct assertions that the Defendant was a spy.

K. Personal Knowledge1. A witness must have personal knowledge as to what they are testifying to. Personal

knowledge must be shown before the witness may testify concerning the matter.2. CALIFORNIA 702

A. The testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.

B. A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence including his own testimony.

C. Subject to CRE 801 – opinion testimony by expert witnesses.3. FEDERAL 602

A. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

B. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.

C. This rule is subject to FRE 703 – opinion testimony by expert witnesses.4. Brown (121) – Tax preparer convicted of fraud. The government submitted evidence from IRS

agent who stated that a majority of the returns were overstated. The agent had to talk to the taxpayers to come to her conclusion. Her testimony relies on out of courts statements because she does not have personal knowledge (in other words, she did not prepare the taxes herself). We want to hear from the taxpayers because they may have a motive to have lied to her. [Note: this case is an example where the appellate court rescued the Defendant from his lawyer. The lawyer should have prevented the agent from testifying. This is extremely unusual]

VII. INTRODUCTION TO HEARSAY EXCEPTIONS

A. Basic rule1. Hearsay is inadmissible unless an exception applies.

a. CRE 1200 b. FRE 802

2. Necessity is not an argument to be used any longer (i.e. “I know this statement is hearsay but it is extremely necessary to our case”)

B. Preliminary questions of fact1. The judge will decide preliminary questions of fact to determine whether the evidence

meets the requirements for the exception, and the jury will determine the weight and credibility of the evidence. The standard will be preponderance of the evidence – more likely than not – in both criminal and civil cases. The jury does not get instructed on evidenciary issues.

2. CALIFORNIA 400-405a. No bootstrapping. You can’t you one hearsay evidence piece to boost up your case for

admitting another piece of hearsay.i. Bootstrapping = use of a statement as evidence of the truth of the statement itself.

3. FEDERAL RULE 104a. The trial court is not bound by the rules of evidence in making determinations of

preliminary facts. It says that preliminary questions of fact are determined by the judge, and the judge is not bound by the rules of evidence, so bootstrapping is okay.

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VIII. HEARSAY EXCEPTIONS

A. DYING DECLARATIONS1. Rationale: We think that it is reliable. We make assumptions that the person has no

motivation to lie, and would want to be honest before they die. Also, this is based on necessity, if we do not admit the statement it is lost, and the best evidence comes from the victim himself. The jury can determine the creditability and motive of the person reporting the statement through cross examination.

2. Foundational Requirements: The proponent of the statement must prove all preliminary facts by a preponderance of the evidence for the evidence to be admissible.a. Declarant must be under a sense of impending deathb. The statement must relate to the cause and circumstance of the impending deathc. The proponent of the statement must prove that declarant had personal knowledge of

what he has said (i.e. if he didn’t see/doesn’t know who shot him, then this cannot be used)i. Personal knowledge = Under the FRE a witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter about which he/she is testifying.

ii. Soles v. State : Victim tells his father “Carl Soles shot me, I have got to die: before he died. The judge allowed the statement in. This case was decided under common law so that may explain why. We have a problem with personal knowledge. The victim had a wound, was probably delirious, and was shot from the back, so how could be sure who shot him? The court did not deal with this problem in the case. Under CA law, the result may have been different.

3. CALIFORNIA 1242a. Can be used in any criminal or civil caseb. Declarant must die

4. FEDERAL 804(b)(2)a. Can be used in civil cases and murder casesb. Declarant does not have to die in the civil case but must be unavailable c. Obviously must die in murder cased. Unavailability FRE 804(a)

i. 5th Amendmentii. Physical, mental illnessiii. Proponent makes a good faith effort but the declarant does not appeariv. You cannot cause a declarant’s unavailability

5. Examplesa. Problem 1 (144) X is prosecuted for murder in shooting A to death in a bar room brawl.

i. In defense, X calls B and makes an offer of proof that B will testify that she talked with A in the hospital the day before his death and A had difficulty breathing, and said “I don’t think that I can make it, it was not X’s fault. C was going after X with a knife before X drew his gun.”

ii. The prosecutor objects and offers to prove using nurse Y that five minutes before his death, A and B spoke and A said he was feeling fine and expected to leave the hospital within a few days.

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iii. The judge listens to the testimony of B and Y and believes that both witnesses are telling the truth.

iv. Must the judge then admit A’s statement? No. We are not convinced that it was made under sense of impending death. B would have to show something that contradicted the nurse’s statement, like maybe show that she did not hear correctly. We don’t have to let this in because it does not satisfy the preponderance of the

evidence standard. There is a big possibility that A felt fine when he told B about it not being X’s fault.

b. Problem 2: (144) Assume that in the above problem, the judge allowed in A’s statement and then the nurse testifies, and then the defense argues that the nurse’s statement is inadmissible because A’s statement was allowed in. The nurse’s statement would be allowed in. The jury can weigh the statement. It is hearsay but it will get in through another exception.

B. EXCITED UTTERANCES (also called “Spontaneous and Contemporaneous Utterances”)1. Rationale: IF you are speaking under the stress of an event, you do not have time to reflect

and make up something that is not true. If there is evidence of refection then it is not as reliable.a. Problem of accuracy – When people are excited, their memory and perception is poor.

The court is aware of this problem and will allow you to bring in experts to tell the jury not to give the statement too much weight.

2. Requirements:a. Nature of the occasion/event must be startling enough to produce nervous excitement

or shock.b. The utterance or statement must be made at the time or shortly after the occurrence such

that the declarant will not have time for reflection, contrivance, or misrepresentation, and must be spontaneous in nature or impulsive.

c. Subject of the utterance must relate to the event (there must be some other proof, other than what the declarant said showing that the act occurred).

d. Declarant must have personal knowledge3. CALIFORNIA 1240

a. Declarant must be under the stress of the event when the statement is made. The timing is somewhat flexible.i. Michling (148) – Plaintiff’s husband died from injury on the job and she needs to prove this

in order to get insurance benefits. Her husband comes home and tells her about the accident. However, it does not look like he was operating under stress of the event. He had the presence of mind to put the truck away and drive home.

b. There must be admissible independent evidence of the exciting event. No bootstrapping.i. Michling (148) – Here the wife first, needs to prove than an exciting event occurred – the

accident. Then, she can get in the statement made during the exciting event. Otherwise it is just her husband telling the wife that the accident happened at work when it really could have been the case that maybe the husband was injured during a bar room brawl after work. This requirement to authenticate the event is a requirement in CA, but not in Fed court.

4. FEDERAL 803(2)a. Declarant must be under the stress of the event when the statement was made.b. FRE 104: The trial court is not bound by the rules of evidence in making

determinations of preliminary facts.i. Michling hypo (148) – If this case was decided in federal court, the judge can use the

husband’s statement as tending to show that there was an exciting event.

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5. Standarda. Use an objective standard for exam to determine whether the circumstances would

warrant excitability.b. Objective standard: Do not look at the person. The event has to be sufficient.

6. Examplesa. Problem 1 (165) – A pedestrian, A, sues X for damages arising out of being struck by a car. X’s

defense is that he was in the curb lane in his red car and that a blue car passed him in the next lane, and struck A, knocking her into the air and onto his red car. He then sped away. A calls B, an ambulance driver, and represents that B will testify that she arrived on the scene ten minutes after the accident, and saw A lying on the ground, that A appeared to be in great pain but not in shock, that B said to A, Relax and take it easy. A then said, “Oh my God, help me, that red car hit me while I was in the cross walk.” X makes a hearsay objection. The result is unclear. The victim is still under the stress of the event but did not make the statement until 10 minutes later. It might be an excited utterance. Here, the bystander is testifying – not the victim, and that is less reliable because he is not as interested as the victim. It is a matter of discretion. But for exam, want the facts to be pretty horrendous (to truly indicate that he is under a great deal of stress and that the bystander was affected as well).

b. Problem 2 (165) – A, a pedestrian, sues X for damages arising out of being struck by a car. X’s defense is that he was in the curb lane in his red car and that a blue car passed him in the next lane, and struck A, knocking her into the air and onto his red car, and then sped away. X calls a police officer, C, who will testify that when she arrived at the scene 5 minutes after the accident, a number of people were gathered around A, and that she heard someone say “That lady was hit by a blue car which didn’t stop and she was thrown up in the air and landed on the red car.” The police officer does not know who made the statement. A makes a hearsay objection to C’s testimony. Here there is no personal knowledge (on the part of the officer) and the declarant is a bystander, so the time of 5 minutes would be too long probably to get an accurate statement. The statement may sound too reflexive, but the person could have been in shock.

c. Problem 3 (165) – X is prosecuted for the kidnapping and assault of Y. Y suffered brain damage and was hospitalized for seven weeks. W, Y’s sisters, testified that one week after Y came home from the hospital, W showed her a newspaper article containing a photo of X. W testified Y’s immediate reaction was one of great distress and the Y pointed to the photo and said “He killed me, he killed me.” X objects that he statement is hearsay and that is not spontaneous because the assault occurred 8 weeks ago. While there is a time lag, the photo event is re-invented the crime for the victim. Also, the words can prove lack of reflection on their own. “He killed me” is an inappropriate thing for someone to say who is concentrating on their speech, it indicates lack of reflection.

C. PRESENT SENSE IMPRESSIONS1. How this differs from excited utterances: This differs from an excited utterance because the

statement is made during or immediately after seeing something. Science suggests that it is more reliable. It is favored over and excited utterance.a. Present sense impression = A statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter; under FRE 803(1) such statements are excluded from the hearsay rule.

2. Rationale:a. There is no time for reflection, the person is speaking something as it is happening.

3. Requirementsa. Personal knowledgeb. Timing of statement – must be made as it occurs, or immediately after

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4. CALIFORNIA 1241a. Calls this the “contemporaneous statement exception”, I’m not sure if CA has the

“present sense impression” exceptionb. Statement can only be used to explain or qualify the conduct of the Declarant.

5. FEDERAL 803(1)a. Statement must be made while the Declarant is perceiving the event or immediately

after b. Statement can be made immediately after the event. This means seconds, however, not

minutes.6. Corroboration = what the Declarant observed is not required (but is usually available.) The

proponent will have to establish that the declarant had personal knowledge and that the statement was made at the right time. Sort of like beefing up your evidence.a. Booth (150) – Evidence of a phone conversation between the victim and the witness testifying.

Witness asked victim who was knocking on the door. Victim later died and evidence was offered to prove who the killer was. The court allows the evidence, the victim was describing events as they happened.

b. State v. Jones – (160) Evidence is the testimony of an officer who heard two trucker talking about the Defendant and victim’s cars. The truckers describe the events they are seeing, and use language such as “look at this, look at that.” Under this state’s rules there does need to be corroboration, like the federal rules.

7. Experts: Experts are treated differently. An expert who makes a present sense impression is problematic because the expert is trained to make clinical judgments as he observes.

8. Testimony: The testimony has to reflect the present sense impression.a. State v. Jones – Evidence is the testimony of an officer who heard two truckers talking about the

Defendant and victim’s cars. The truckers describe the events they are seeing, and use the language such “Look at this, look at that.” The officer testifies to this at the hearing, but when he testifies at trial, he did not use the trucker’s dialogue exactly, so it sounded like hearsay. The Defendant’s lawyer did not object at the time to this difference. If he had, the judge would have decided which version should be allowed. The prosecutor could have had the chance to ask why the officer did this. This is the perfect example of why we have a waiver rule.

9. Examplea. Problem 4 (165) – Prosecution for the theft of a truck. A state trooper testifies that after

receiving a radio report of an abandoned truck, he asked for info over the citizen radio. First Cber informed him that he saw two men walking away from the truck. Second Cber said that he two men were seen walking five to six miles from the truck. A few minutes after the first Cber report, the two men were arrested five miles form the truck. Should the first statement be admitted? The language here is different than Booth, it does not appear to be a present sense impression. Also, in terms of time, the statement was made awhile after it was seen, for the two men were 5 miles from the truck, which would make it about an hour later.

D. ADMISSIONS1. General Information

a. Note: This is the most important exception to the hearsay rule according to Williams.b. Note: As a general rule, the balancing test is not applied because the party is free to

explain away any unfair prejudice that results as to the admissionc. Rationale: It is based on the adversary system sharing on a lower level the

characteristics of admissions in pleadings or stipulations. The person can always testify and explain, qualify or deny the admission. The person made the statement, and has no right to complain that they will not be crossed. They are a party to the litigation, so they can testify.

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2. Basic Admissiona. Defined:

i. Admission = A voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action; under the Federal Rules of Evidence ADMISSIONS are not considered hearsay.

b. Requirements:i. “A statement of a party offered against that party.” (Period! The person does not

have to say in exact words that they admit to something)ii. It is irrelevant whether the statement is against personal interest!

For example: If a person states that a note is forged and then later acquires the note and sued upon it, the previous statement may be introduced as an admission although the party had no interest when he or she made the statement. Note – most admissions are actually against interest when made, but ther is

no such requirement.c. Distinctions between Admissions and Declarations Against Interest (DAI)

i. Admissions must be statements of a party to the lawsuit By contrast DAI need not be made by a party but may be, and typically are

made by some third personii. Admission must be offered against the party opponent

By contrast DAI may be offered by either partyiii. DAI exception admits the statement only when the declarant has become

unavailable as a witness, while unavailability is not required of admissions of a party.

d. Statutes: i. CEC 1220 – Admission of a Partyii. FRE 801(d)(2) – Admission by a Party-Opponent

e. Example: i. Problem 1 (173) – Plaintiff sues Defendant for personal injuries from car accident. D was

driving and P was a passenger. D testifies that as she was driving, P blew the horn, and this surprised her, so she hit a telephone pole. P testifies that he never blew the horn. In a pre-trial hearing, P offers an admission by D, that D admitted that she made the statement because she was fearful over her insurance. This is a clear-cut admission; it is a statement by a party offered against a party. But not all of them are, or have to be, this clear cut in order to qualify as an admission.

3. Admission by Adoptiona. Defined

i. Adoptive admission = Action by a party in which he approves a statement of one for whom he is responsible, thereby accepting the truth of the statement; under certain circumstances silence may also constitute an admission. Thus, such statements of a declarant may be admitted against another party if it can be shown that the party adopted the statements as his own.

b. Requirements:i. Statement of a party offered against a partyii. The party has manifested his adoption or belief in the statement’s truth. “I heard

that our company was at fault in the accident” is not admissible.iii. CEC: The party has knowledge of the content.iv. FRE: Admission is defined as not hearsay!

c. Statutes

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i. CEC: 1221 – Adoptive Admissionii. FRE 801(d)(2) – Admission by a party-opponent

d. Example:i. Reed (165) – Man dies in plant accident. Defendant at the hearing before the coroner,

testified about the type of machine used by the decedent at work, and the accident with the machine that had caused his death. D statements before the coroner were not based on his personal knowledge of the accident. He had however, heard about the accident from another employee. If he, however, had just said that this is what he heard, then it would be inadmissible, but he gave his testimony in a “matter of fact” way.

4. Admission by Silencea. Rationale : This depends on an assumption about human nature. The judge can let it in

and the jury will decide what weight to give it, but you can always explain your silence to contest the fact that it constituted an admission.

b. General rule : If a reasonable person would have denied the statement made against them, it is admissible as an admission.i. Hoosier (167) – Defendant is accused of bank robbery. A witness testified that three weeks

after the robbery, the Defendant’s girlfriend made a statement that implicated the Defendant in the crime, and the Defendant did not say anything. The court said that if a reasonable person would have denied it, then it is an admission. However, it is important to note that simply remaining silent in the face of an admission is never enough. Here, we had additional evidence that the Defendant had made remarks himself about wanting to rob a bank.

c. Limitations i. Miranda right protection : Silence cannot be used against you in a court of law when

you are in custody and refuse to answer to/deny accusations.ii. McCormick:

Statement must have been heard by the party who does not respond Statement must have been understood by the party who does not respond The subject matter must be within the party’s knowledge (otherwise they will be

silent because they are confused about what you are accusing them of) There cannot be any physical, legal or emotional blocks that make the party

remain silentiii. The majority view is that the judge will decide as a preliminary question of fact

whether the statement meets the condition of the exception.d. Examples:

i. Carlson (170) – Defendant is convicted of drug crimes. Wife accuses Defendant of drug use and Defendant just “hung his head and shook his head back and forth.” The court held that the non-verbal reaction here was too ambiguous to be an admission.

ii. Problem 2 (174) – A sues B for the price of goods sold to X. A claims that B is a partner in X. A testifies that before he sold goods to X, he was at X and the president introduced him to B with the statement “meet my partner.” B did not say anything. On the surface, it looks like an admission by silence (like he was admitting that he was as high up in the company as the other man). But the judge has to look at the circumstances, maybe there was a real impediment to deny (like you wouldn’t want to contradict your boss and make him sound like a liar in front of someone else.

5. Admission by Conducta. General rule : In a majority of cases, the declarant is acting in accordance with their self

interest and thus, it is not hearsay (doesn’t need to be crossed). It is non-assertive conduct, meaning you can use it without worrying about hearsay problems. Examples include:

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i. Flights from the scene, one’s usual haunts, confinement, or to a different jurisdictionii. Assuming a false nameiii. Shaving off a beard/growing oneiv. Resisting arrestv. Attempting to bribe arresting officers/witnessvi. Forfeit of bond by failing to appear/walking out of proceedingsvii. Suicide attempts by accusedviii. Destruction of evidence

In other words, all the above list is nonassertive conduct and will be, under most circumstances, admitted into evidence at trial.

b. Examples i. Problem 1 (175) – P sues Defendant, a physician, for malpractice. At the trial, Defendant

admits negligence but denies that his negligence was a proximate cause of the cancer. P offers evidence that Defendant destroyed his original records and produced copies only. Defendant claims that this is irrelevant, claiming that Defendant’s admission made the records irrelevant. They, however, tend to show that the doctor thinks there is a problem with the records. It is not prejudicial because the jury would be making a logical conclusion. But, destroying the records is not hearsay because it is non-assertive conduct. If something is not hearsay, we don’t have a problem letting it in. He did it for his own self-interest. [The records themselves are hearsay because they are assertive].

ii. Problem 2 (175) – D a physician, is charged with the offense of prescribing narcotics to persons not under treatment for a pathology. The evidence presented is the prescriptions written by D. At the trial, D requested the exhibits. They were later found in the toilet bowl in the bathroom. D claims that this is irrelevant – too speculative (anyone could have placed those there). There are many inferences to get to the conclusion that D destroyed the exhibits (need to infer he wanted to destroy them, that he actually would, that he was available to sneak away with them, etc.). However, it is irrelevant. This is nonassertive conduct. It will be allowed in.

iii. Problem 3 – (175) D is charged with murder. The prosecutor offers evidence that prior to the arrest, D attempted to flee and conceal his identity. This evidence is offered as corroboration of the testimony of an accomplice. D says that it is irrelevant, that the evidence really shows that D believed that he was going to be arrested on drug/parole charges (another offense he has) and it does not show that he was guilty of murder. This is still nonassertive conduct. We don’t worry about unfair prejudice, D can explain why he fled to the jury.

6. Admission by Employee/Agenta. CALIFORNIA 1222

i. Declarant was authorized by the party to make a statement – Need explicit or implicit authorization Big Mack (179) – Trucker does not set brakes and truck kills another trucker. A cop

interviews the trucker. Trucker tells the cop that he did not set the brake properly and that there had been air pressure problems. The trucker does not testify. The Plaintiff offers the truckers statements to the cop on behalf of the company. The court rules that the evidence was not admissible. If the driver was in court, was a party, then it would be an admission.

ii. Independent evidence must be offered to sustain a finding of authorization [or the court may use its discretion to find this].

b. FEDERAL 801(d)(2)(D)i. The statement was made by a person authorized to make a statement concerning the

subject.

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ii. OR a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. THIS IS MUCH BROADER THAN CA. Mahlandt (175) – A child is injured. The dispute is whether it was harmed by a wolf or

by the fence. Employee is not home when the incident occurs. Talks to others about it. He then talks to his employer. He makes two statements that the wolf bit the child. He does not have personal knowledge but he adopts the admission when he communicated to the employer. The statement is not being used against him, it is being offered against the employer. The statement is not authorized by the employer but it is within the scope of the declarant’s employment and is thus, admissible under the federal rules.

Sabel v. Mead Johnson (183) – A user of a medication sues the manufacturer. Offers evidence of a meeting between the manufacturer and outside consultants. The court holds that the evidence was inadmissible because they were not in an agency relationship (not working as employees of the company). Because it does not satisfy the federal rule, it is inadmissible hearsay.

iii. The content of the statements will be considered but are not sufficient to show authority, agency, employment, scope. IT IS THUS EASIER TO USE THIS RULE BECAUSE OF FRE 104. (Preliminary questions – court is not bound by rules of evidence in making these determinations {except w/privileges}).

iv. FRE: Admissions are not defined as hearsay. For same reasons as illustrated above, primarily, that they do not lack the ability

to be crossed examined. c. Internal business communications are protected.

i. Rationale: The policy reasons that we want to encourage business and want to encourage safety discussions. Big Mack (179) – Trucker does not set brakes and kills another trucker. A cop

interviews the trucker. Trucker tells the cop that he did not set the brake properly and that there had been air pressure problems. The trucker does not testify. The Plaintiff offers the truckers statements to the cop and to the president of the company. The court says that the statement to the president was inadmissible because it is an internal communication and is therefore protected.

d. Examples: i. Problem 1 (179) – A, a painting subcontractor, sues X, a general contractor for money

owed. A had been paid 4 progress payments but X refused to pay the fifth. X claimed that A’s work was poor. B was X’s supervisor and authorized X to approve/reject subcontractor’s work and to approve payments. When A was 98% complete, B wrote a letter of recommendation for A, stating that A had completed the job to everyone’s satisfaction. A offers B’s letter into evidence. X objects that the letter is hearsay. 1) Under federal law, B is making a statement about something that is in the scope of

employment, no problem 2) Under CA law, there is not explicit permission but it may be implicit because he is

the person responsible for inspecting and checking work.ii. Problem 2 (179) – A sues X market for personal injury damages from a slip and fall

accident. A few minutes after A fell, manager B arrived and pointed out a banana peel. C, a witness, proposes to testify for A. Then B says “Don’t worry about this. We will pay your bills. It is the store’s fault.” X objects to C’s testimony as hearsay. Under fed law, the manager is probably responsible for safety and it is difficult to argue

that he is responsible for making settlements. It will be hard but Williams did not say that it would not get in.

Under CA law, this is not authorized, clearly. The court may look at an employment contract, which outlines the employer’s policies though.

7. Admission by Co-Conspirator

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a. Rationale: The court constructs a fiction that co-conspirators are partners. One partner’s statements are admissible against another partner.

b. CALIFORNIA 1223i. Foundational facts must be met in CA by independent evidence. No bootstrapping!ii. Declarant was participating in a conspiracy to commit a crime or a civil wrong. iii. Statement was made in furtherance of the conspiracy

Doerr (187) – Two brothers are talking in a bar about the prostitution ring, one brother is teasing the other about not knowing what is going on. Court says that it needs evidence that their conversation is moving the conspiracy forward (furthering the conspiracy). This conversation sounds more like idle chatter. This case sent a message to the lower courts that more will be required in order to allow in evidence of this nature to use against someone else.

iv. Statement was made prior to or during the time that the party was participating in that conspiracy – but not after!

v. The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified above, or in the court’s discretion as to the order of proof, subject to the admission of such evidence. This is flexible in that you do not have to prove all of the elements right away. You can allow the statement in subject to a motion to strike. But if you do not establish the foundation properly later, you run the risk of mistrial.

vi. The standard for admission is still preponderance of the evidence. Bourjaily (190) – Defendant was charged with a drug crime. He objected to the

admission by a co-conspirator. The prosecutor introduced evidence of a telephone conversation between the D and a friend to prove conspiracy. The court held that the prosecutor must prove the preliminary facts (that there was a conspiracy) by a preponderance of the evidence, before these statements will be allowed in to prove conspiracy.

c. FEDERAL 801(d)(2)(E)i. Statement is offered against a partyii. Statement is made by a co-conspirator of the partyiii. Statement is made during the course of and in furtherance of the conspiracyiv. The content of the statements will be considered but are not sufficient to show the

existence of the conspiracy. IT IS THUS EASIER TO USE THIS RULE BECAUSE OF FRE 104.

v. FRE: Admissions are not defined as hearsay!d. In furtherance :

i. Statements made to recruit membersii. Statements seeking control damage to an ongoing conspiracyiii. Statements made to keep co-conspirators advised as to the progress of the

conspiracyiv. Statements made to conceal the conspiracy

e. Timing of when you join the conspiracy: Both CA and FRE say that even if you join the conspiracy, say, two months after the admission, the statements are admissible against you.i. Goldberg (186) Defendant was convicted of fraud and tax offenses based on statements

made by two co-conspirators.f. Example

i. A makes a statement that B has agreed to help us rob a bank. Under CA, the prosecution must bring in evidence to establish all of the elements.

Cannot bootstrap.

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Under FRE, it would be allowed in because the judge may not need independent evidence. Even if the judge needs more, he does not need to abide by the hearsay rules for foundational evidence.

E. DECLARATION AGAINST INTEREST1. Rationale: People generally do not lightly make statements that are damaging to their

interests.2. CALIFORNIA 1230 AND FEDERAL RULE 804(b)(3)

a. Declarant is unavailable b. Declarant had personal knowledgec. Declarant is not a party to the case (different than admission)d. The statement that is against the Declarant’s interest, so that a reasonable person would

not have made the statement unless he believed it to be true.e. Declarations against interest

i. Pecuniary or proprietary interest Pecuniary examples:

Acknowledgment that the declarant is in debt (to owe a debt is against one’s financial interests)

Also a declaration that one has received payment from another (the payment may be good, but the declaration indicates that the amount owed is diminishing)

Proprietary examples: Acknowledgments that the declarant does not own certain land or personal

property, or has conveyed or transferred it. Declaration from one that he has less than complete ownership in a parcel of

land is also a declaration against interestii. Risk of civil or criminal liabilityiii. Render invalid a claim by the declarant against anotheriv. CA: social harm – (i.e. harm to reputation, ect.)

3. Statement Exonerating the Defendanta. ONLY the Fed rules adds this part into the rule, the Ca rule does not talk about allowing

in statements that exonerate a defendantb. A statement tending to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating circumstances indicate trustworthiness. This is an additional requirement of trustworthinessi. The federal rules decided to allow in statements that exonerate someone during a

criminal trial but there was hesitancy to allow it in just like that. The motivation for the exclusion was namely a fear of opening the door to a flood of witnesses testifying falsely to confessions that were never made or testifying truthfully to confessions that were false. This fear was based on the likely criminal character of witness and declarant, reinforced by the requirement that declarant must be unavailable, which made perjury easier to accomplish and more difficult to punish.

c. Two-part analysis to do in these cases:i. Do the offered remarks come within the hearsay exception as a “statement against

interest?”ii. If they do, is there sufficient corroboration to clearly indicate trustworthiness?

4. Limitation: Only the part of the statement that is actually against interest will be admitted.a. Williamson (213) – Defendant was charged with cocaine related crimes. Declarant told the

police that he was supposed to deliver the drugs to the Defendant. The court said that only the

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statements that actually implicated the declarant were admissible against his self-interest, because the other statements were too self-serving. Thus, this establishes a limit to the rule.i. Rule here : FRE 804(b)(3) does not allow admission of non self-inculpatory statements,

even if they are made within a broader narrative that is generally self-inculpatory.b. BUT, Barrett (208) – Defendant was convicted of theft of stamp collection. Three witnesses

make statements that Defendant was not involved. The court says that this is against the witness’ interest because it shows that hey had knowledge of the crime and possibly would inculpate them in part of the conspiracy. After Williamson, however, this case is open to be decided either way.

5. Examples (Note: Remember a hint, when doing these problems and you are tempted to call them admissions, usually don’t, unless you see something in the facts stating that the out of court declarant is out of the country, dead, pleads the fifth etc. If see they are unavailable then think this, not if they are a party to the suit.) a. McKelvey (207) – Employer sues insurance company and wants to offer written statements of

employees who admitted that they stole money. The evidence is admissible as a DAI because they risk being sued by their employers. Note: This was a common law case that only considered pecuniary or proprietary interests, not criminal.

b. Problem 1 (216) – X is prosecuted for possession of a marijuana cigarette that was found in a jacket in X’s car. X’s defense is that the jacket belonged to A. X calls A as a witness and takes the 5th amendment. X then calls B who will testify that A told him, the day before the arrest, that he had left his jacket in X’s car. Result: this was not against his interest when the made the statement. He did not have a reason to deny that the jacket was his. If he stated this after the arrest, may by more of an issue.

c. Problem 2 (216) – X is charged with possession of heroin. The heroin was found in X’s house while A was present. X establishes that A is in another state at the time of the trial. X calls B, A’s wife, and offers to have her testify that A told her that the heroin belonged to A. Result: A makes a statement against his interest, there is no reason to make this statement, especially to wife if not true. Does it matter that B cannot testify against A because of spousal immunity? No. Then B would not have any reason to fear liability.

d. Problem 3 (216) – A is a guest in a car driven by B. B collides with X. A, B and X are injured. A sues X, X claims that B ran the red light. X offers testimony that B is in Europe. X calls C who will testify that one week after the accident, B told him that the accident was all B’s fault. Result: this is admissible. B is not a party, and made a statement against his civil interest, and is unavailable.

e. Problem 4 (216) A sues X in a paternity action, claiming that X is the father. X calls B, a friend of C, a married man who lives in Europe. X wants B to testify that C was formerly A’s boss and that C told B that C was having an affair with A during the time that A’s child was conceived. Result: C is not a party, C is unavailable and the statement was against C’s interest because C would be subject to sexual harassment charges, social interest damage or paternity actions. Basically given all the liability that C would face, there is no way a person would admit to something like this unless he really did sleep with her during that time.

f. Problem 5 (216) D is charged with murder of V who was shot to death. The prosecution introduced testimony that D along with another was seen beating V prior to the shooting. The following facts occur:i. D calls X to testify about whether D did the shooting. X refuses to answer on the 5th

amendment. ii. The judge holds an in camera hearing.iii. D then calls A who was in jail with X and heard X admit that he shot V, and that D was

trying to break up the fight.iv. On cross, A says that he heard X agree to take the blame for the shooting because D had

threatened him. D then offers to have X testify.v. Under CA, a reasonable person may make these statements even though not true, because

doing so would be in his self-interest – to avoid being beat up..

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vi. Under FRE, it is being offered to exonerate D, so need corroborating evidence.

F. FORMER TESTIMONY1. Rationale: The exception was a reaction to the consequences of the hearsay rule if during

an appeal, a witness dies and the case is remanded. If you were to use the testimony of the witness in the other trial, this would be hearsay. It would be the testimony given out of the current court.a. However, it became known that there are safeguards that ensure against these concerns.

i. The hearsay was tested in the former trial and we can presume that the witness was adequately cross-examined in the first proceeding.

ii. We are confident about the accuracy of the testimony because it comes from an official proceeding and was taken by a court reporter. In most cases this is a more accurate form of hearsay than the other ones we except from the rule (i.e. – excited utterances)

2. CALIFORNIA (Make sure I crystallize this rule with Williams)a. Ca 1291 Offered against a party to the former proceeding

i. The declarant is must be unavailable ii. The former testimony is offered against a person to whom it was offered in the first

trial or against the successor in interest of such a personiii. OR the former testimony is offered against a party to the first trial and that party had

the right and opportunity to cross examine the declarant by and with the same or similar motive as in the current proceeding

b. Ca 1292 Offered against one not a party to the former proceedingi. The declarant is unavailable as a witnessii. The second proceeding is civiliii. The party in the first trial had the right and opportunity to cross examine the witness iv. AND The party in the first trial had an interest and motive to cross examine the

witness similar to that of the party against whom the testimony is being offered.c. Ca 240 Unavailability of a witness could be rendered by:

i. Pleading the 5th amendmentii. Disqualification from testifyingiii. Dead, physical or mental illnessiv. Court is unable to compel his or her attendance by processv. Proponent has exercised reasonable diligence but has been unable to locate or

compel attendance by process (must persuade, cannot force a witness to testify)vi. Cannot prevent the witness from testifying by sending them away or killing themvii. Need to establish this preliminary question of fact using a preponderance of the

evidence standard Wright (195) – Insurer wants to get into evidence statements made by witnesses in a

prior criminal trial. The witnesses said “JB hired us to torch the building.” These witnesses then pleaded the 5th amendment in the current trial, a civil case. This means that their testimony is unavailable. In the criminal case, one brother was a party. in the civil case, another brother is a party. This is okay because they are treated as successors in interest (therefore, do not need exactly the same parties). We presume that in the first trial, there was the same motive to cross examine the witnesses and test their credibility (in both trials, in order for the brothers to win, they needed to discredit the statement that “JB hired us to torch the building,” to win in the criminal case (i.e. prove they are lying so JB won’t go to jail, and in the civil case to prove they are lying so that they can collect on the insurance money – they can’t collect if they torched their own building).

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3. FEDERALa. FRE 804(b)(1) – Offered against a party to the former proceeding

i. The declarant must be unavailableii. Testimony by a witness at another hearing of the same/different case or in a

depositioniii. Party against whom the evidence is offered [or predecessor in interest if it is a civil

case] had the opportunity and similar motive to develop the testimony by direct, cross or redirect.

b. FRE 804(a) – Definition of Unavailablei. Plead the 5th Amendmentii. Declarant refuses to testify despite court order to do soiii. Declarant has a lack of memory to the subject matter of the statement

If the witness is claiming lack of memory, they still need to be present in court in order to establish this lack of memory

iv. Death, existing physical or mental illnessv. Proponent is unable to procure the declarant by process or other reasonable means.

c. Note : The witnesses testimony in a prior proceeding can only be used against the same party or against a predecessor in interest if in a civil trial. Federal rules require that if not same party then must be successor in interest. This is not like CA, which allows it to be used against a different party without having to show that that party is a successor in interest. California is more concerned about a showing of the same or similar motive. i. Successor in interest = when someone steps into the shoes of the party, in civil cases

where: property has been bought or inherited, the parties are partners, or class action suits where all members of the class are considered the same party.

4. Examplesa. Salerno (201) – Defendants were accused of being in the mafia. They wanted to offer testimony

from witnesses from the grand jury hearing. Even thought those witnesses were granted immunity in the grand jury hearing, these witnesses still testified that the Defendants were not in the mafia, which surprised the government. At trial, the government revoked their immunity with the consequences that if they testified and said the D’s were not in the mafia and it was later proven they were, the witnesses could be impeached for perjury. Therefore, they pled the 5th. This means that they were rendered unavailable to testify to the Defendant’s not being in the mafia. The D’s were arguing that the judge should allow this grand jury testimony in. The government is arguing that this testimony should not be allowed in because the government did not cross-examine these witnesses to the same degree they would have had this been the actual trial. There, they were trying to get an indictment. The court remanded the case on this point to determine whether in fact this was the gov’t’s motive during the grand jury hearing.

b. Problem 1 (206) – X is prosecuted for robbery of A, a bartender. At X’s preliminary hearing, A testified. A stated the address of B, the bar, where he was working, and his home address, but indicated he was moving soon. At X’s trial, the prosecutor offers evidence from the preliminary hearing – a transcript of A’s testimony. C, the district attorney investigator, testifies that he could not find A, that A no longer worked at the bar, that the phone book and voter registration did not contain A. On cross examination, C testifies that he did not check the Bartender’s union or the home address because A said he was planning to move soon. X makes a hearsay objection to the preliminary hearing transcript. Result: The testimony will not be allowed in. There was no due diligence. The prosecution should have checked certain things, and knew that A was going to move.

c. Problem 2 (206) X is prosecuted for the robbery of A. The prosecution offers in evidence the transcript of A’s testimony given at the preliminary hearing after calling B, a district attorney

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investigator, who testifies that a subpoena had been sent to A’s place of employment but was not served because A was in New York, that an hour before testifying, B made a call to A in New York and A told him that she planned to remain in New York for six months. Should X’s hearsay objection to A’s transcript testimony be sustained.i. In civil case, cannot make A come back, so A is unavailableii. In criminal case, the DA probably could compel the state to cooperate and get A to come

back, or would have to get and affidavit that stated he could not find A.d. Problem 3 (206) – A sues X for $1500 property damage to his car from rear-end collision. X

takes A’s deposition. A moves to New York after his deposition is taken and is living there at the time of the trial. A’s counsel offers A’s deposition in evidence after testifying that a few days before trial, A telephones and said it was too expensive to come back to testify.i. Here, A, is the Plaintiffii. This is based on Ca case that said that in a civil case, could not compel A to come back, so

was unavailable.e. Problem 4 (206) – X, a police officer, pursued a suspect felon in a bar. X became involved in a

dispute with A, the bar owner, regarding the whereabouts of the suspected felon. X claims that A struck him with a chair. X arrested A on charge of battery of a police officer.i. In the criminal trial, A testifies that he didn’t touch X and that X hit him with the Billy Club.

B, a bar patron who was present, testifies for A.ii. A was acquitted and then sues X and the city.iii. At the trial against X and the city, A establishes that B’s whereabouts are unknown and that

he used reasonable diligence to find B. A then offers transcript of B’s testimony from A’s criminal trial. X and the city object.

iv. In CA, they are different parties, but we just care about the same or similar motive.v. In FRE, this would be harder because the city and state are not successors in interest. The

federal rules are not as liberal with this.

G. PRIOR IDENTIFICATION1. Note: A prior identification is hearsay because it is assertive conduct: either declare or

point to the person, and claim that they did something.2. Rationale: We trust a prior declaration because the declarant is making the identification

when fresh in mind, and there are constitutional protections.3. Ask – What about a prior identification in another court? Do you use former testimony or

prior identification?4. CALIFORNIA 1238

a. Declarant must make the identification when the incident was fresh in his mind.b. Declarant must testify at trial that the identification was true in his mind at the timec. Declarant must have personal knowledge.

5. FEDERAL 801(d)(1)(c) (Fed rules are more lenient than Ca.)a. Federal Rules defines this as NOT HEARSAY!b. Declarant must testify.c. Declarant must be subject to cross-examination.d. Declarant must make the identification after perceiving the person (I assume that this

means soon after)i. This is personal knowledge. You have to prove that you saw the person well

enough to make an identification. If you did not see the person well enough to make an identification, most likely this will be picked up on in the cross-examination. Owens (244) – Here the victim was attacked. His memory is impaired and he cannot

identify his attacker. Two weeks later, he identifies his attacker. At trial during cross-examination, he cannot remember seeing his attacker but he does remember making the

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identification. The court allows the identification in to trial. They read the statute literally, and say it is allowed because he met the elements. The jury can decide how to weigh his identification. There is a right to a cross examination, but not to an effective cross-examination. This would not be admissible in CA because the victim cannot testify to personal knowledge. This case stands for the proposition that both the Confrontation Clause of the Sixth

Amendment and FRE 801(d)(1)(C) require that declarant be “subject to cross examination. This requirement is very broadly construed, requiring only that the declarant be present at trial and testify under oath. Thus, if the declarant is present but he has completely lost his memory, he is still considered to be “subject to cross examination”

e. Does not have to be a true reflection of his opinion or fresh in his mind.6. Examples

a. Problem 1 (248) X is prosecuted for robbery of A. A testifies that he was held up at gunpoint, that the next day he identified the man who robbed him at the police station and that he is sure that he picked the right man but cannot remember now the person who he identified. The prosecution calls B, a police officer, who will testify that A came into the station, saw X in the hall, and yelled, “there goes the man who robbed me” and pointed to X.i. Under FRE: A’s testimony is admissible.ii. Under CA: A’s testimony is admissible because A made it while fresh in mind and testifies

that he picked the right man. The question to ask is that in the case of a declarant who can not remember now the person identified, does the fact they once did mean that they have satisfied the personal knowledge component? ASK.

iii. How would B’s testimony be admissible? You are using out of court statement to prove the truth of the matter asserted. ASK.

b. Problem 2 (248) – X is prosecuted for robbery of A. A testifies that he was held up at gunpoint, that the next day he identified the man who robbed him at the police station but he has no memory of making the identification of X or anyone else. The prosecution calls B, a police officer, who will testify that A came into the station, saw X in the hall, and yelled “there goes the man who robbed me” and pointed to X.i. Under FRE: A’s testimony is even worse than Owen because he does not even remember

making the identification. There are not cases one way or the other.ii. Under Ca: this would be inadmissible. The declarant cannot testify at trial that the

identification was true in his mind at the time b/c he does not remember making any identification.

iii. Is B’s testimony admissible? Inadmissible hearsay.

H. STATE OF MIND1. General Information

a. Rule: When intention, feelings, or other mental state of a person at a particular time is material to the issues under trial (i.e. if it is important whether they were fearful, or whether they lost affection for someone, or whether the hated someone {to show motive} then will allow in), evidence of such person’s declaration’s, although hearsay (because many times they are stating these things out of court), is admissible as an exception to the hearsay rule.

b. The other items of hearsay we have been looking at have been mainly declarations of fact, not necessarily of feelings or intentions.

IX. Three ways to use X. Result XI. ExampleXII. Effect of declarant’s

statement on someone’s XIII. Not

hearsayXIV. To show that someone was afraid for their

life because of something the declarant said

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state of mindXV. Indirect evidence of

declarant’s state of mindXVI. Not

hearsayXVII. To show that declarant does not like Jerry

Springer because declarant says “Jerry is a meathead.”

XVIII. Direct evidence of declarant’s state of mind

XIX. Hearsay XX. Declarant says “I do not like Jerry Springer”

a. Problem A (227): Buzzy is being prosecuted for murder. The state offers testimony about a statement that the victim made before the victim’s death. The defense is that there was an accident. Buzzy claims that he and the victim were cleaning Buzzy’s gun and it went off.i. The victim told a friend “I hate Buzzy.” This is hearsay. This is admissible under the

traditional present state of mind rule. It tends to show that they are not friends and that it is unlikely that they were hanging out.

ii. The victim told a friend “Buzzy has been stalking me. He threatened to kill me.” This shows state of mind – not hearsay. It is not being offered to prove the matters asserted. It is being used to show that they would not have been together. There may be a problem of prejudicial effect. The judge will have to balance.

b. Problem A (227): Buzzy is being prosecuted for murder. The state offers testimony about a statement that the victim made before his death. The defense is self-defense. Buzzy claims that the victim attacked first.i. The victim told a friend “I am afraid of Buzzy.” This is hearsay. It is being used to show

that the victim would not have attacked Buzzy first because he was scared of him. The inference depends on the truth of the matter asserted. The present state of mind exception however would allow it in b/c that was how he was presently feeling at the time.

ii. The victim told a friend “Buzzy has been stalking me. He threatened to kill me.” This is relevant to the proposition that the person wanted to kill victim, so it would be hearsay if used in this way. However, this may also be allowed in under the state of mind exception b/c it goes to the person’s belief that they are being stalked. You can also use the evidence indirectly to show that because the victim was afraid of Buzzy, it is highly unlikely that they would have attacked first.

c. Problem B (227) – Buzzy is charged with murder and the defense is mistaken identity. Buzzy claims that he did not even know the victim. The state offers testimony of a friend of the victim who said that on the day of the murder, victim said to friend “Buzzy is after me because I ripped him off. If I do not come back this afternoon, call the police.” He then gave his friend Buzzy’s number.i. This would be hearsay if used to prove the inference that he and Buzzy know each other..

However, if used to disprove the proposition that Buzzy did not know the victim then not hearsay. If the person and Buzzy did not know each other then unlikely the person would have Buzzy’s phone number. Remember these cases are special because we are simply rebutting the evidence the Defense raised themselves.

d. Problem 4 (227) In the O.J. case, the judge excluded evidence of statements by Nicole to her friend that O.J. was following her and she believed that he was going to kill her. This is hearsay because it is being used to prove the truth of the matter asserted and her state of mind was not the issue brought up by the Defense that she would be rebutting.i. If the Defense had claimed that the couple had a warm relationship in their opening

statement, then her state of mind would could be used to rebut the conclusion that they got along. In this case, the Defense was careful to not make any mention of their relationship.

ii. Note: You can rebut comments from the opening statement, even though it is not evidence2. Declarant’s Direct State of Mind

a. Rationale: Why would we allow in evidence of direct statements, directly indicating what the declarant was feeling? Because the declarant is the best person to say how

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they feel and we do not want to lose these statements. We are also not worried about memory or perception. We assume when people talk about their feelings, both mental and emotional, these kinds of statements are generally trustworthy (there are no memory problems)

b. General rule: Direct Evidence of state of mind is admissible as a hearsay exception if state of mind is relevant in the case.

c. CALIFORNIAi. CA 1250

Present : Present statements of how one is currently feeling. Can use to prove then existing state of mind: mental, emotional, or physical sensation. Example: intent, plan, motive, design, mental feeling, pain or bodily health. Evidence is offered to prove or explain that acts or conduct of the Declarant State of mind must be at issue in the case Not memory or belief to prove the fact remembered or believed (so can’t use

for past things remembered)ii. CA 1251

Past : State of mind to show how was feeling in the past. Can use to prove state of mind, at time prior to the statement: mind, emotion or physical sensation

Example: intent, plan, motive, design, mental feeling, pain or bodily health. Declarant must be unavailable. The evidence is being used to prove the Declarant’s prior state of mind,

emotion, or physical sensation when it is itself in the action and the evidence is not being used to prove any other fact

CA goes further than the federal rules!iii. CA 1252 – Restriction

Evidence of a statement is inadmissible under this article if the statement was made under circumstances to indicated lack of trustworthiness. The proponent has the burden of proof.

This adds a foundational requirement. If the opponent raises this issue, the burden shifts to the proponent to prove that it was trustworthy.

d. FEDERALi. FRE 803(3)

Present state of mind, emotion, sensation or physical condition Examples: intent, plan, motive, design, mental feeling, pain and bodily health Can’t use memory or belief to prove the fact remembered or believed unless it

relates to Declarant’s will3. INTENTION

a. Hillmon Doctrine : A party’s intention to do something in the future tends to show that the party acted in accordance with that intention.i. This rule is accepted in CA and FRE.ii. Hillmon (221) – Insurance company claims that Plaintiff’s husband is not the body that was

found. As proof, she offers into evidence letters from her husband that indicated that he was going to the place in which the body was found. The letter said, “I am going to Crooked Creek.” The inference to be drawn is that if he intended to go as he stated in his letter, he must have gone.

b. Shepard Rule: The Declarant’s direct present statements of state of mind may not be used to prove a past event.i. Both CA and FRE follow Shepard.

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Shepard (224) – Declarant is dead. Government offers her statement “my husband has poisoned me (an event that took place in the past {albeit recent past}, I am going to die” to rebut the defense argument that she committed suicide. This was being used to prove her state of mind when she died. The court should have issued a limiting instruction. The court used this case to make it clear you cannot speak to a past act(poisoning) on behalf of someone other than the declarant.

c. Pheaster Rule: The Hillmon Doctrine allows admission of hearsay statements to prove intentions of a declarant (future conduct of another person), even if the intentions involve another party’s actions. This is true in CA only.i. There must be personal knowledge. It must be connected (I assume this means

there has to be a connection between one person’s knowledge and the other person’s intentions.

ii. CA follows Pheaster!iii. FRE (Majority of states) does NOT follow Pheaster!

The basis for this is found in the HOUSE committee notes. For exam, use the majority rule unless the question specifies we are in CA.

iv. Pheaster (228) – Victim says to friends, “I am going to meet Defendant in the parking lot.” Defendant objects to this statement because it shows declarant’s intention to do something in the future, not sure about what the Defendant’s intentions are. But the CA Supreme Court said it was admissible under Hillmon. Note that this does not follow with the rationale for the rule, the victim is in no position to say what the Defendant is going to do. He can only speak for himself.

v. Hypo (233) The issue is “Was the Declarant with Angelo that night?” Examine the declarant’s statements. 1) “I am going to the parking lot tonight.” Other evidence shows that Angelo went

there that night. Under CA, admissible Under FRE, admissible

2) “Angelo is going to the parking lot tonight” other evidence shows the Declarant went there that night. Under CA, Pheaster, it is admissible if you read it to mean that the Declarant is

going to the place and not to implicate the Defendant. Under FRE, inadmissible

3) “I am going to Angelo’s apartment tonight.” Under CA, admissible Under FRE, admissible because does not implicate any ACTION on behalf of

Angelo. Just states Declarant’s intention of going to the place. Angelo may or may not have been there.

4) “I will not go out with anyone other than Angelo tonight” other evidence shows that he went out with someone. Under CA, admissible Under FRE, admissible because does not say that Angelo went out, it is inferred

from the other evidence. 5) “I am going to wait at home for Angelo until he picks me up and then we will go

out.” Under CA, admissible Under FRE, inadmissible, here you are stating what Angelo is going to do.

6) “I am going out to meet Angelo in the parking lot tonight” Under CA, admissible Under FRE, inadmissible, because it places Angelo at scene and in a sense states

what Angelo’s intentions for the evening will be. 7) “I may go out with Angelo tonight”

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Under CA, admissible Under FRE, inadmissible. Could only use statement for Declarant. Puts Angelo at

the scene and implicates what Angelo may be doing.d. How firm does the Declarant’s intention have to be? This is a matter for the jury, they

can hear evidence as to the weight.4. SURVEYS

a. A survey is admissible to prove state of mind if the methodology is legitimate. Have to have experts on hand to testify at to the method they used to conduct the surveys. i. Zippo (234) – In a trademark design dispute, Zippo had to prove that the customers buying

the lighters were confused. Zippo hired market researchers and a survey shows that a high number of the customers were confused by the shape of the Zippo lighter and the competitor’s lighters. The survey is hearsay because it is being used to prove the matter asserted, that people were confused. It falls under the state of mind exception of the customers.

5. Examples of All Types of State of Minda. Adkins (217) Plaintiff wanted to offer wife’s statement that 1) she found husband distasteful and

that 2) her boyfriend gave hear a good time. This will prove one, that wife is alienated, and two, that the Defendant-boyfriend is liable. The court would allow the statement about how she felt toward her husband but would not allow the statement about the boyfriend, because that goes beyond the state of mind. Only statements discussing how she felt about her husband (her feelings) were admissible. Thus, the second statement should have been excluded or the court should have issued a limiting instruction.

b. Problem 1 (239) – A sues X for damages for wrongful death of B. A testifies that they had a warm marriage. X calls C, a business associate of B to testify that B told C that he was unhappy in the marriage. Hearsay, but present state of mind.

c. Problem 2 (239) A sues X for damages for wrongful death of B. A testifies that they had a warm marriage. X calls C, a business associate of B to testify that B told C that he was unhappy in the marriage. C will also testify that B said that he caught A with another man months ago and could not forget it, and hated A now.i. Under CA, admissible even though past (b/c describing a past event). ASK about.ii. Under FRE, may be allowed in if can show that he still felt this way.

d. Problem 3 (239) X is prosecuted for murder of A, his brother. X admits he shot A, but claims it was accidental. X calls B, a police officer, to testify that several hours after the shooting, he had a conversation with X, and X was grieving.i. Under CA, under 1252, the circumstance may indicate lack of trustworthiness, so the judge

will have to decide under preponderance of the evidence standard, maybe he was making it up because he was talking to a cop and may have been trying to cover up the murder.

ii. Under FRE, admissible (no trustworthiness requirement)e. Problem 4 (239) X is prosecuted for the murder of A his girlfriend. A was shot to death in X’s

apartment. X’s defense is that A was in his apartment and requested to see gun collection and he handed her a pistol and that A examined it, dropped it, and it went off, killing her. The state calls B, A’s friend, to testify that a week before the shooting, A told here that she was afraid of X and was afraid of guns.i. Under CA, admissible under state of mindii. Under FRE, admissible under state of mind

f. Problem 5 (239) X is prosecuted for the murder of A his girlfriend. A was shot to death in X’s apartment. X’s defense is that A was in his apartment and requested to see gun collection and he handed her a pistol and that A examined it, dropped it, and it went off, killing her. X calls C, a friend of A, to testify that two weeks before the shooting, A told her that she was planning to go to Utah to go hunting and that A was fond of X.i. Under CA, supports his story that she asked for the gun. Hillmon intention and her current

state of mind so probably admissible.

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ii. Under FRE, supports his story that she asked for the gun. Same here.g. Problem 6, (239) Sarah is prosecuted for the murder of Sam. Sarah claims self-defense. The

state calls W, a friend of Sam, to testify that on the day before the killing, Sam said that he was going to tell Sarah that he would not pay her money he owed her, that he might get killed over it, but that he was going to do it anyway.i. Under CA, O.k. under Hillmon, shows state of mind that he feared her, and would most

likely not have attacked herii. Under FRE, O.k. under Hillmon, shows state of mind that he feared her at that moment and

most likely would not have attacked her.6. Physical Condition (statements about one’s present physical condition)

a. Rationale behind allowing: People generally tell the truth about how they feel. b. Example: I have a headache.c. CALIFORNIA 1250 AND 1251

i. It is the same as regular state of mind.ii. Any statement of present physical condition, not how the person felt 3 months ago.iii. Any statement of past physical condition if state of mind is at issue and if the

declarant is unavailable.iv. Statements can be made to anyone!

d. FEDERAL RULESi. FRE 803(3) covers this. It is the same as present state of mind.

Present state of mind, emotion, sensation or physical condition Example: pain and bodily health

ii. FRE 803(4) Medical Diagnosis or Treatment Exception (mainly fed rules talks about) Patient statements made for the purpose of diagnosis and treatment are a

separate exception. Does not include statements by the doctor! Example of what would be allowed in:

a.) “I was injured when the car rear-ended me.”i.) This would be allowed in because it may be pertinent to the treatment

to know how you were injured. Here the doctor would know to check for whiplash.

Example of what would not be allowed in:a.) “I was injured when the 1990, blue Toyota Corolla ran the stop sign and

hit me” i.) This extra information is not critical to the treatment the doctor will

give you. Present AND past condition. Must be made to medical personnel. Can be made on a waiting room

questionnaire, in the emergency room, to a receptionist (b/c the receptionist might be able to get the proper doctor for you based on your symptoms or it may be the policy of the hospital to ask require the nurse to ask that type of info), to a doctor.

Generally, the doctor is available to testify about these statements, but this is not required.

This is a separate rule. Rationale: there is no reason to lie when seeking treatment because you want to get better.

B. PRESENT RECOLLECTION REFRESHED

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1. Concept: This is when writing or other things are used to jog a witness’ memory. Anything can be used!

2. Rationale: These materials are not hearsay because they are not evidence in the case, they are just briefly being used to jog the memory and are not given to the jury along with all the other evidence to make their decision.

3. Defined:a. The use by a witness of some writing or other object to refresh his recollection so tht he

may testify about past events from present recollection; this phrase refers to any item, writing or object used to “jog” the witness’ memory even though the witness has not adopted the item, object or writing as his own. The memory aids used are not normally inspected by the jury unless they are independently admissible.

4. CALIFORNIA 771a. Writing or other thing can be used before or during testimonyb. The opponent can demand a copy of whatever was used to refresh the memory, can

cross-examine the witness concerning this information, and can introduce it into evidence if they so chose

c. If the writing is not produced, the court will strike the testimony, HOWEVERd. Non-procurement may be excusable if: party does not have item under their control, or

party cannot procure the item through reasonable means (basically they have to have tried to get the info, do a good-faith effort, and still not be able to find it)

5. FEDERAL 612 (A stricter rule with respect to criminal cases)a. Same as CA, except that if there is an objection that the material contains items that are

not related to the subject matter of the testimony the court can examine it in camera and excise portions of the materials not relating.

b. If the producing party fails to turn over the materials in a civil case the court does not have to strike the testimony, it can hold the party in contempt, issue fines.

c. However, if the case is a criminal one, the court can strike the testimony or issue a mistrial depending on the facts of the case.

6. Examplea. Baker (248) – Defendant wants to introduce statements made by the victim. The victim said

“she is not the one” to a police officer. The police officer does not remember this. The defense wants the police officer to look at a police report. The police officer did not prepare the report. The appellate court held that a report or memorandum prepared by another party may be used to refresh a witness’ memory at trial even if the report was prepared by another party.

C. PAST RECOLLECTION RECORDED1. Concept: If a witness cannot recall something, we’ll allow a writing as an exception. So

essentially at the time the witness saw something and jotted it down or someone else jotted it down. Now, however, the witness does not remember the event well enough to testify about it. We will in these cases allow this record to be read out to the jury in the trial, and it will be entered into the record. However, the person must come to court and testify to the requirements in the law. This record will not be entered into evidence unless the opponent wants it to be.

2. Defined: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately; the memorandum must be shown to have been made or adopted by the witness at the time that memory was fresh in his mind. Under such conditions, FRE 803(5) excludes the memorandum from the hearsay rule.

3. CALIFORNIA 1237

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a. Witness can make the record OR another person can make the record if it was made for the purpose of recording the witness’ statement at the time.

b. The person who made the record must testify that at the time it was made, it was accurate and fresh

c. Must establish that the person has no memoryd. Can only be offered into evidence if by the opponent (so this is not evidence

automatically)4. FEDERAL 803(5)

a. The person having the recollection must have made the record OR adopted the record at the time it was made by reviewing it and approving it.

b. The person who made the record must testify that at the time it was made, it was accurate and fresh

c. Must establish that the person has no memoryd. Can only be offered into evidence if by the opponent.

5. Examplea. Problem 1 (259) X is prosecuted for robbery. The prosecution calls A, who testifies that she

saw the getaway car and noticed the license number, and that ten minutes later, a police officer came to the scene, and she told him the number then. She has no recollection of the number now. The prosecution calls B, the police officer, who testifies that at the robbery scene, A told him that number, he wrote it down. They produce the sheet. The prosecutor asks B to read the number. X makes a hearsay objection.i. Under FRE, inadmissible. Nothing in the facts to show that the declarant adopted or made

the statement. The officer just wrote it down, the declarant did not affirm it. A third party cannot make the statement. Also there is no evidence that they established the witness had no memory.

ii. Under CA, admissible. It was fresh in the Declarant’s mind, she testifies at the time it was made that it was accurate, the police officer testifies that he wrote it, and produces the sheet. This satisfies the foundational requirements. Allows a third party to offer the evidence.

D. BUSINESS AND OFFICIAL RECORDS1. Note: This is the second largest exception to the hearsay rule2. Rationale: The people who keep these records are employees of these companies and thus

have an incentive to keep accurate records.3. Basic Rule:

a. Made as a record of an act, condition or eventb. Made in regular course of businessc. Made at the time of or near the time of the act, condition, eventd. Person had a duty to reporte. Qualified witness (custodian) testifies to the identity of the document and method of

preparationf. Sources indicate that the writing is trustworthy

4. Business Records a. CALIFORNIA 1271b. FEDERAL RULE 803(6)

i. Statements including opinion, diagnosis are also admissible under this rule. “Based on what I have said, in my opinion, it was pilot error . . .” as long as these were conclusions based on the facts.

ii. Defined: Under FRE a statement, memorandum, report or any other record of acts or events made at or near the time of the even, made by or transmitted by a person

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with personal knowledge, and kept in the course of regularly conducted business activity, is a statement made during the course of a business; such a statement is excepted from the hearsay rule.

c. Both rules define business broadly i. CA 1270 business = every kind of business whether carried on for profit or not.ii. FRE 803(6) Records of regularly conducted activity. iii. However, journalist notes and newspaper articles although business records and

kept regularly do not fall under this exception.d. Both rules allow and absence of business records to be used as evidence

i. CA 1272 Absence of entry in business records (to show that an event or occurrence did not occur b/c if it did the company would have kept record of it)

ii. FRE 803(7) Absence of entry in recordse. Hypo 5 (299) X sues to recover price of good sold from contract. A and X entered into a

contract for A to sell X 1000 metric tons of lead fume. The contract price depended on the exact weight and metallic content of the lead fume delivered by A. To prove the weight and metallic content, A testifies that she employed B, a highly trained assayer. She offers into evidence a report on the letterhead of B, purporting to bear B’s signature. The problem is that A is not the custodian.

5. Multiple levels of Hearsaya. Concept: This comes up a lot with business records because A said to B and B made a

report, C.b. Basic rule: If a business or official record contains hearsay, that hearsay must fall under

an exception as well, for the evidence to be admissible.c. FRE 805: Hearsay within hearsay is not excluded under the rule if each part of the

combined statements conforms to an exception.d. CA 1201: A statement is not inadmissible if the hearsay consists of one or more

statements each of which meets the requirements of an exception.e. Business records can be edited. The part that does not fit an exception will be

eliminated.f. Examples:

i. Kelly v. Wasserman (26 4) – Defendant promised Plaintiff that he could live rent free. Plaintiff wants to introduce statements by welfare department that the Defendant told them that he made that promise. The court held that it was admissible. He did not have a duty, but he was making an admission.

ii. Johnson v. Lutz (260) – Officer prepares a police report about an accident. He takes statements by a bystander. Thus, there are two levels of hearsay. The police officer is under a duty and his statement is admissible. The bystander is not under a duty, and that statement is inadmissible because it does not fall under any exception. The bystander testimony was excluded.

iii. Hypo (263) A sues B over a car accident. The police report contains the following: a) I was standing at my beat and saw the red car hit the green car

One level Officer under a duty so no problem

b) I arrived at 1:30, 20 minutes after the accident, and noticed a skid mark, which I measured at 93 feet. One level Officer under a duty so no problem

c) I arrived within 5 minutes of the accident and heard a bystander scream “did you see that red car hit that green car?” Two levels Officer under a duty

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Although bystander not under a duty, may be able to get this in as an excited utterance

d) I arrived a few minutes after the accident and asked the driver what happened. He said he fell asleep at the wheel. Two levels Officer is under a duty May be able to get this in as an admission

e) I arrived a few minutes after the accident and another officer told me that he saw the red care hit the green car. Two levels Both officers are under a duty, no problem

f) I arrived a few minutes after the accident and another officer told me that she got there before I did and asked the driver what happened, and he said the fell asleep at the wheel Three levels Two of which are covered because officers under a duty Still may be able to get the driver’s statement in as an admission

G) I arrived 25 minutes later and asked a bystander what happened. He said that he saw it all and that the red car hit the green car. Two levels Officer had a duty Bystander did not have a duty and probably cannot get this in as an excited

utterance b/c too much time has passediv. Hypo 2 (298) – X is prosecuted for the robbery of A. X’s defense is an alibi. X testifies that

he was in a distant city, having registered at the B motel at the time of the crime. X calls C, a hotel clerk, who identifies the registration card prepared by another clerk. The registration card does not bear X’s signature. C testifies that hotel policy does not require the signature. There are two levels of hearsay: Clerk: admissible under business exception X information given to the clerk. Inadmissible, no exception.

v. Hypo 6 (299) A sues X for car accident. A testifies that he went to Doctor B and Hospital C for treatment, and had his car repaired at D garage. A offers into evidence bills or invoices. Each bill is stamped with the word payment received. Looks like a business record, but who is going to provide the foundational elements? A

is not the custodian of these records. Would need to drag in all of these people who gave her the receipt.

vi. Example where the court was wrong Duncan (265) insurance company records were at issue. They included four levels of

hearsay: the insurance company, the medical statements, statements by doctors and defendant’s statements to doctors. The court held that all were admissible. But the other levels were not established, there needed to be foundation for all of them.

6. Hospital Recordsa. There is a split in the courts about allowing the cause of an accident into a medical

report.b. Majority rule : FRE say it is not admissible under the business records exception, only

information necessary to diagnose and treat would come in under the medical exception.i. Williams (267) Plaintiff is trying to prove injuries and introduces medical records. The

Defendant then wants to introduce the rest of the medical record which contains a statement by the Plaintiff to the doctor about the cause of the accident. The physician

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records this in his business/medical record. It is not admissible because it is not part of the business record needed to treat him. It is not within the regular course of a hospital’s business to make a detailed record of the manner in which the patient was injured, just the actual injuries.

c. CA Rule: Ca would allow this in, does not make this fine of a distinction. If the overall record has to do with diagnosis and treatment, they will treat the entire thing as a business record.

7. Computer Recordsa. Basic rule: Business records generated by computers are treated just like any other

business record. Custodian may have to testify as to how the record was created, depending on the level of complication of the software.

b. Requirements:i. Witness can demonstrate that the computer record is what the proponent claimsii. The witness must be sufficiently familiar with the record system.iii. It is the regular practice of that business to make the record.

c. Must be trustworthyi. Potamkin (275) Computer evidence was inadmissible because there were errors, the source

of the tapes were not made available during discovery and they were generated for the purpose of litigation.

8. Litigation Rulea. Basic Rule: Records that are made primarily for litigation – do not have another

purpose – are not admissible if the proponent of the record wants to offer it.b. CA and FRE follow this rule:

i. The statutes do not address this issue, and it may come under a general trustworthiness argument. The FRE kept Palmer in when they drafted the rules.

ii. Rationale: A party could get anything in under the business records exception even if it was not done in the ordinary course of business. This would hurt individuals because businesses would produce many such documents.

c. Insurance companies are generally not disinterested parties, they produce documents for litigation.

d. Examples:i. Palmer (276) Train kills man and wife sues. The railroad kept records of the accident.

They interviewed the engineer. The SC said inadmissible because not ordinary part of business and was generated for litigation.

ii. Lewis (278) Plaintiff is injured while working on the RR. The Defendant says the accident was his own fault. Two reports are generated. The were allowed in because they were generated monthly for safety reasons. Thus, not prepared primarily for litigation. The court holds that they are admissible because the Plaintiff is introducing them and they were prepared by the Defendant. A memo or report of an accident kept in the regular course of business, is admissible when prepared by a party not involved in the accident and not taking sides (insurance).

iii. Yates (281) P was injured on the job and made a worker’s compensation claim. Five doctors examine the P, some for the P and some for the D. The D’s doctors is examining P for the purpose of litigation. The court holds that the yare admissible because P is introducing them and they were prepared by the D. Court did not allow P’s doctors info in.

iv. Hypo 1 (298) A sues X department store for slip and fall. A claims that she fell because the floor was slippery from polishing. X offers a report made by the store manager, B. B is no longer working there and could not be found for testimony. X established that B report was prepared the day after the accident, and that store managers customarily make these reports after an accident. The report states that B arrived a few minutes after A fell and

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that B examined the floor and it was not slippery. The store would have to show that it was not preparing for litigation by making the report. Otherwise, it meets the exception.

v. Hypo 4 (299) P sues D for accident. P offers doctor report. Establishes that the report is the only record kept in ordinary course of business. Report states that the doctor examined P, had X-rays, and diagnosed the injury. The reports also states that in doctor’s opinion, P will suffer permanent damage. D objects. Assume that the doctor is treating physician, not being seen for litigation. Under FRE, admissible even though it is an opinion Under CA, inadmissible because it is an opinion. Would only allow the diagnosis.

9. Official Recordsa. Rationale: This is really part of the business records exception but it is separate

because we think that some records, such as government records, are more trustworthy.i. The official records exception is broader

Example: HUD deals with housing issues. During an earthquake, it may create a record. This is allowed in under the official record, but would not be allowed under the business record because it is not customary and a normal part of their business. However, because they are a government agency their records are inherently more trustworthy.

ii. Official records can be introduced more easily – Under FRE and CA rules, it (the record) can be certified and the maker of the record does not have to testify.

iii. However, often this lets in information by people who do not have a duty to report.b. CALIFORNIA 1280

i. Applies to both criminal and civil cases!!ii. The writing was made by and within the scope of the duty of a public employeeiii. The writing was made at or near the time of the act, event or conditioniv. The sources of information, method, time of preparation indicate trustworthiness

So Ca does not bar law enforcement materialsc. FEDERAL 803(8)

i. Public officers or agencies’ records, reports, statements, data, in any form that covers The activities of an agency or office OR matters observed pursuant to a legal duty, BUT NOT matters observed by

law enforcement in a CRIMINAL CASE Rationale : We are concerned here that the jury will convict the Defendant

solely on the basis of a police officer’s report. OR factual findings from investigations/hearings in civil actions and

proceedings OR criminal proceedings against the government.

Unless there is a trustworthiness problemii. Unless circumstances indicate a lack of trustworthinessiii. Opinions (rendered in official reports) are admissible under FRE, like the business

records exception Beech Aircraft (284) navy training aircraft crashed and spouses sue the aircraft

manufacturer. The Plaintiff’s offer evidence of their military investigation. He examined the crash and came up with an opinion that the result of the crash was pilot error. The Defense objected. The SC held that the evidence was admissible. According to the opinion, investigative reports may include not only facts, but also conclusions and opinions. The court concluded that factually based conclusions and opinions are within the scope of the public records exception to the hearsay rule under FRE 803(8)(C).

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iv. If the record flunks the official records test because it is being offered in a criminal case, it cannot be admissible under another exception. This is the only time that this is true! Rationale: We do not want to defeat the purpose of the limitation to the

exception. Oates (290) Defendant is convicted of drug charges. Evidence by a government

chemist is offered under the official records exception. There are several problems with the trustworthiness of the evidence, however, there is also the problem of the federal rule limitation that the report cannot be used in a criminal proceeding. The other problem with the evidence is that the one who prepared the report is not available. The court does not allow the evidence in under the business records exception.

v. Police reports are admissible if they are routine, non-adversarial matters and are not of an investigation specifically designed for a particular crime at issue Grady (297) – Defendant was convicted of violating firearms laws. The prosecution

offers evidence of government department reports. The court allows them in because they are strictly routine records that identify serial numbers of the weapons found. They do not prove the government’s entire case.

Neighborhood watch programs would be o.k. (WHY?) Unless the reason is that they are not technically police investigators.

Hypos: Defendant is accused of murder. He presents an alibi defense, claiming that he was

600 miles away. The prosecution has a parking ticket on the night of the murder that shows that the Defendant’s car was at the scene. The citation contains all of the general information. It was issued by a police officer who does not have present memory of the car or the license number. The murder had not been discovered at the time of the ticket. a.) Under CA, this is okay as a business or official recordb.) Under FRE, this would be inadmissible because it is being used in a criminal

proceeding. (But isn’t it being used as a routine report.?) Hypo 3 (pg. 298) A sues X for fire damage to A’s house. A employed X to remodel

the kitchen. A claims the fire started from X’s negligence. X claims the fire was from arson. X offers a report from B, captain in the city fire department, who spoke with neighbors and inspected the premises, and concluded that the fire was arson.a.) There are two levels of hearsay here.b.) Captain’s observations: admissible under official records exceptionc.) Neighbor’s statements: inadmissible because they do not have a duty to report.d.) Under FRE, would allow in because made pursuant to an investigation in a

civil matter. e.) Under CA, can get in his own observations but not those of neighbors (they are

not made in the scope or duty of a public employee) Hypo 7 (299) – D is charged with robbery of V, a liquor store owner, at his store.

V testifies that after the robbery, he ran out of the store and obtained D license plate number. V testifies to the number. D calls P.O., a police officer, who issued a report and established that it was made in the usual course of business, and at or near the time of the robbery. A sentence in the report states that 30 minutes after the robbery, the police received a call from A, a neighbor of V, who reported the license number as a different number from V. V objects. D claims that the report is being offered as non-hearsay to establish that different number had been reported, but that if hearsay, the record is admissible under the official record exception. a.) There are two levels of hearsay here, the police officer (who was not there, and

the neighbor)b.) The police officer is under a duty to report.

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c.) The neighbor is not under a duty, so this part is inadmissible.d. Remember a point that is often overlooked: Person making the record must have a duty

to report.i. Johnson v. Lutz (260) – Officer prepares a police report about an accident. He takes

statements by a bystander. Thus, there are two levels of hearsay. The police officer is under a duty and his statement is admissible The bystander is not under a duty, and that statement is inadmissible because it does

not fall under any exception. This part will be excluded. (Side-rule) Retired officer is not under a duty, but an off-duty officer is. Hypo, 8 (299) – Sam is charged with perjury because he allegedly gave false testimony

in the trial of a civil action. The prosecutor’s contention of the false testimony is that, in the civil action, Sam, identified himself by the name of John D, while his real name is Sam D, and that in qualifying to testify as an expert he claimed that he was a consultant engineer at the US Bureau of Mines. The prosecution offers into evidence a writing stating that the singer was the official custodian of the record, has made a diligent search of the record, and failed to find any record of a person named Sam or John D that had been an engineering consultant. The writing bears a signature and is stamped with a seal. The evidence falls under the official records exception (all the requirements have been met), can prove a negative (that no one by that name had ever worked there), and can thus can use this certified evidence in trial.

E. MISCELLANEOUS1. Judgments of Previous Convictions

a. CA 1300 i. Final judgment in a conviction of a felonyii. Can be used only in a civil actioniii. To prove any fact essential to the criminal judgmentiv. Does include no contest pleas!v. Rationale: the Defendant has thoroughly litigated, or has admitted guilt, thus,

convictions of other minor crimes are not allowed in because the motivation to litigate may not be present. This cannot be used in any criminal cases, because the Defendant has a right to confront his accusers and what the prosecution would be providing is just the judgment.

vi. The conviction is not conclusive, the jury must weigh it in with other factors.b. FRE 803(22)

i. Prior conviction of a crime punishable by death or more than one year in prisonii. Is admissible to prove any fact that was essential to the convictioniii. Can be used in a criminal prosecution if the conviction is a prior conviction of the

person accused in the present proceeding. But not when offered by the government in a criminal prosecution for purposes other than to impeach.

iv. Does not include no contest pleas.2. Treatises and Commercial Lists

a. CA 1340: (Find out whether these can be received as exhibits, they just say they are not inadmissible)i. Commercial publications which are generally used and relied upon as accurate in

the course of business are admissible.ii. Historical works, books of science or art, and published maps or charts are

admissible BUT only when offered to prove facts of general notoriety and interest (also the party must be indifferent).

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You cannot admit a medical treatise under this section in a medical malpractice case because it does not discuss matters of general notoriety.

Rationale: publication reflects expert authority and the facts asserted can be easily tested against corroborative evidence because it is supposed to have general notoriety.

b. FRE 803(17)i. Commercial publications are admissible, ii. Like CA, but the list is more broad of what is included

c. FRE 803 (18) i. Treatises are limited to used in connection with an expert witnessii. Particularly useful in cross-examination of an expertiii. Is not limited to fact of general notorietyiv. The treatise can be read into evidence, but not received as an exhibit

3. Statements of Family Historya. CA 1310 (Declarant’s Statement About His Own Family History)

i. Declarant is unavailableii. No requirement of personal knowledgeiii. Inadmissible if made under circumstances indicating lack of trustworthiness

b. CA 1311 (Declarant’s Statement About Family History of Another)i. Declarant unavailableii. Proof that the Declarant was so loosely associated with the subject that he is likely

to have accurate information, OR admissible when he is related by blood or marriage

iii. Inadmissible if made under circumstance indicating lack of trustworthinessc. CA 1312 – allows entries in family bibles and books to be consideredd. CA 1315 – allows use of church recordse. CA 1316 – allows use of birth, marriage, divorce, death other certificatesf. FRE 804(b)(4)(A) (Statement of Declarant’s Personal or Family History)

i. Declarant unavailableii. No requirement of personal knowledge

g. FRE 804(b)(4)(B) (Statement of Another’s Personal or Family History) i. Declarant is unavailable ii. Proof that the Declarant was so closely associated with the subject that he is likely

to have accurate information, or is related by blood or marriageh. FRE 803(11) and (12) – allow use of religious records, marriage, birth, death

certificatesi. FRE 803(13) – allows use of family bibles, records

4. Ancient Writingsa. FRE 803(16): statement that is 20 or more years old and whose authenticity has been

verifiedb. CA 1331: statement is more than 30 years old and has been relied on by persons

having an interest in the matter.

5. Reputation a. This testimony (where allowed- e.g. for impeachment) is an exception to the hearsay

rule. True at common law and under FRE 803(21). Reputation is after all only the assimilation of a wide variety of hearsay statements in the community; the fact that so

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many different hearsay statements all concur makes them, in theory, more reliable than a single ordinary hearsay statement. Hence the exception for statements of reputation.

XXI. RETURN TO RELEVANCE

A. PROBALISTIC EVIDENCE 1. Problem: Statistics can be manipulated and misunderstood. There is a general worry that

the jury will give too much weight to the statistics. Courts do not trust juries to make distinctions when numbers are “bandied about (passed to and fro).”

2. Procedure: Most courts will not instruct the jury on the technical issues, but will allow an expert to testify on how the numbers are reached.

3. Rule: There are two requirements:a. There must be foundation for the assumption, a “factual basis for the numbers used.”b. The methodology must be an accurate representation, “agreement upon the experts that

the analysis used is acceptable in this situation.” You can’t just introduce this radical, little used theory, just b/c you claim it’s scientific.

4. There must be foundation for the assumption, a “factual basis for the numbers used a. Collins : (1968, pg. 361) There was a problem with the identification of the D’s of a purse

snatching case so the Prosecutor introduces statistical evidence about how likely it was that the D’s committed the crime. There is a huge problem with the numbers used. i. The prosecutor made up numbers for the odds of someone driving a yellow care and invited

the jury to make up their own numbers.ii. There was an overlap in categories. Have to calculate the odds of a woman with blond hair

and a ponytail, and a black man with a beard, and a black man with a mustache.iii. The entire thing depended on the accuracy of the witness in the first place. The jury has to

decide whether the people who committed the crime even looked like this to begin with. This all reeks of imprecision and fancy tactics to sway the jury that don’t have a lot of

relevance.b. Kammer (1988, pg. 370) : In a paternity suit, a blood test is taken. This case is stronger than

Collins because the facts are based on the record. The test results is a fact. There is evidence that they indeed had sex. There is no evidence that nay other man had sex with the mother (the jury believed the woman’s testimony). There is expert testimony from the D that the 50-50 chance is appropriate and a world-wide standard.

5. The methodology must be an accurate representation, “agreement upon the experts that the analysis used is acceptable in this situation.a. Kammer : The paternity test taken says that he is 460 times more likely to be the father than any

other person. But not all others could be the father because they have not had sex with the mother. So, have to reduce the universe of people that could have had sex with her. This is hard because it is a “he said, she said” argument. She claims they had sex, he denies that they did it during the conception time frame. They assign a fifty-fifty percent chance that his is the father based on the odds that he had a relationship with the mother at that time. There is expert testimony from the D that the 50-50 chance is a world-wide, appropriate standard that actually works in favor of the D b/c the chance that he slept with her during this time is probably higher.

B. INTRODUCTION TO CHARACTER EVIDENCE1. Definition : Character is a generalized description of a person’s disposition, or of the

disposition in respect to a general trait, such as honesty, temperance, or peacefulness.2. There are three ways to prove character :

a. Specific instances of conductb. Reputation in the community. Reputation is broad.

i. The SC has said that it is whatever people are saying about the Defendant.

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ii. Can be a false rumor as long as there is a basis.iii. Can be about an arrest even if did not result in a conviction because arrest s affect

reputation.c. Opinion

3. Two step process for using this evidence: a. First, identify the purpose for which the evidence of character is offered.

i. If character in issue, no problemii. If not in issue, exclusion is more likely especially when offered to help prove that a

person acted in one way or another.b. Second, consider the type of evidence offered to establish the character of an

individual.i. Specific acts, opinion from observation, reputation.

4. CHARACTER IN ISSUE:a. Character is “in issue” when character is an element of a claim or a defense and it is

admissible.i. Examples:

Custody battles trying to find a fit parent. A complaint for negligence may allege the D allowed an unfit person to use a

motor vehicle or other dangerous object. An employer was negligent in hiring or failing to supervise an employee with

certain dangerous character traits.ii. Wellman : (1962, pg. 376): the P’s character is at issue when he sued a newspaper for libel

because you have to decide whether the statement was true and did it harm his reputation. iii. Cleghorn : (1874, pg. 375): The evidence at issue is that the switchman was an alcoholic.

This seems to be circumstantial character evidence because it suggests that he drinks, drank that day and was drunk on the job. The court allowed this in however to prove that the company was negligent. This is a case for punitive damages against the company. The employer knew or should have known that the was a drunk and they were negligent for hiring him (valid use, can’t use to show negligent in this specific instance) and allowing him to work. For punitive damages, character is an essential issue.

iv. Hypo: (pg. 377) Widow sues D for wrongful death of her H. Widow testifies that they had a happy and affectionate marriage. This places character in issue. The widow put character in issue based on the nature of the lawsuit. The jury has to decide how much his death is worth to her in terms of companionship and earning potential. The evidence suggests that the relationship was not that good and that he would not have earned much as a convicted criminal.

b. You can use all three forms of proof, including specific acts when character is in issue i. Hypo: (377) To counter the evidence that the widow and her husband had a happy and

affectionate marriage, and that he would have earned quite a bit had he lived, the D offers specific act evidence. They offer: that the husband had left her and lived with another woman, and that he was convicted for writing bad checks. Both were allowed in.

ii. Wellman : The P’s character is at issue when he sued a newspaper for libel. The defense offers that he has been convicted of assault, that he was twice bankrupt, that he had a mistress, that his own sister sued him. All was admissible.

c. Unfair prejudice i. Cleghorn : The evidence at issue is that the switchman was an alcoholic. This seems to be

circumstantial character evidence because it suggests that the drinks, drank that day, and was drunk on the job. The court allowed this in however, to prove that the company was negligent. There is a problem that the evidence prejudicial because the jury might use to conclude that the switchman had been drunk and was negligent. But the probative value is

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high. So the court can separate the issue. Try the negligence portion to determine fault, then have a separate trial for the damages.

5. CIRCUMSTANTIAL CHARACTER EVIDENCEa. An example of circumstantial character evidence is when the proponent wants to show

increased likelihood that the D was convicted of robbery before and therefore, committed this robbery. So, evidence of character in any form – reputation, opinion from observation, or specific acts – generally will not be received to prove that a person engaged in certain conduct or did so with a particular intent on a specific information – this is circumstantial character evidence.i. Rationale: We do not want to convict a person based on the “bad person theory,”

i.e. that they did it before and therefore they probably did it here. We have to prove they committed the crime beyond a reasonable doubt.

b. Circumstantial Character Evidence is NOT Admissible in a Civil Case. c. In criminal cases:

i. Common Law : The prosecution cannot introduce any circumstantial character evidence. BUT the defendant is allowed to introduce evidence of good character as

tending to show that he did not commit the crime. THEN the prosecution can cross examine character under common law

Bring in evidence to show that the reputation is different. [not specific acts because would have to subject this to cross examination and would take up lots of litigation time and effort]. Unless and until the accused gives evidence of his good character, the prosecution may not introduce evidence of (or otherwise seek to establish) his bad character.

Impeach the defendant’s character witnesses, by asking about specific instances, because not being offered for the matter asserted but is being used to suggest that the witnesses:a.) Lack sufficient knowledgeb.) Have been dishonest with the jury (there is a likelihood that they are

testifying for a friend and therefore may not be as upfront about all they know as they should)

Michaelson : (1948, pg. 378) D is convicted of bribery. The Defense calls 5 witnesses who have known him and say that he has a good reputation for honesty and truthfulness. This is relevant because if he is a good person, it is less likely that he committed the crime. The prosecution crosses the witness and asks them if they heard that the D committed a past crime. Prosecution does this to discredit the witnesses. Either they knew of it and are deliberately misleading the jury, or they did not know about it and they have insufficient knowledge to testify on his behalf.

Camus : (387) D kills someone and claims self-defense. The defense is worried about the way he acted as his mother’s funeral. Worried that the jury will not like him b/c he did not cry. If the defense calls character witnesses, this will open the door for this unfavorable evidence to come in. The prosecution can cross examine these witnesses with questions about this specific act during the funeral.

ii. There are two requirements to use circumstantial character evidence for impeaching a witness. Has to be relevant to the character trait in issue by D (e.g., the D is putting on

evidence of his peaceful nature, the prosecution has to direct its cross examination to discrediting his peaceful nature, not brining evidence that he his a heartless person.

There must be some basis for the accusation. This is done away from the jury.

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[Also, the judge will issue a limiting instruction, always the case when the evidence serves two purposes].

iii. The judge decides whether there is sufficient showing that the witness has requisite knowledge, the jury decides whether the witness is trustworthy, credible, etc. The courts impulse is to exclude. Hypo: (#1, pg. 426) X, a prison inmate, is charged with assault on A, an inmate.

Prosecution wants to show that X and B, an inmate, stabbed A numerous times. X’s defense is that he broke up a fight between A and B. Evidence at issue: X calls Y, an inmate who did not see the fight, has known X for one month, and in his opinion, is a non-violent person. Prosecution claims this inadmissible character evidence. Result: The D is offering it is a criminal case, he is using it rebut the inference that he is capable of a crime like this, and to support that he was trying to break up the fight. An opinion is allowed. D is putting his character at issue. BUT the courts are clear that the witness must qualify to give an opinion, so the fact that the has known him a month, might be a problem.

iv. CALIFORNIA 1100, 1101(a), 1102, 1103(a)(b), and 1108 Same as CL Opinion is allowed [Roosevelt]. Defendant can introduce opinion, reputation, specific instances of victim

a.) Prosecution can offer evidence of violent character of the Defendant if the Defendant introduces evidence that the victim was violent.

Prosecution can bring in evidence of D’s prior sexual offenses if D is accused of another sexual offense.

v. FEDERAL RULE 404(a) Same as CL – “Evidence of a person’s character or trait of character is not

admissible for the purpose of proving action in conformity therewith on a particular occasion (subject to exceptions)”

Opinion is allowed Character of the victim is admissible if offered by the accused (defendant), or

the prosecution to rebut, or by the prosecution to show that the victim was peaceful to rebut evidence that the victim was the first aggressor (if D puts on evidence V was the first aggressor, the prosecution can rebut).

6. OTHER ACTS EVIDENCE (PRIOR BAD ACTS)a. Main idea:

i. If used properly, this evidence is not offered as circumstantial character evidence.ii. The prosecution can introduce prior acts evidence as part of their case. Do not have

to wait for the D to “open the door.”iii. Can be used in BOTH criminal and civil cases.iv. The evidence is usually specific act evidence.

b. The Requirements [McCormick]i. The evidence must be clearly connected to the case. If you are using identity,

identity must be an issue in the case (like if the D is raising an alibi stating I didn’t do it)

ii. The balancing test is critical.c. CALIFORNIA 1101(b)

i. Evidence of crime/act when relevant to prove some fact other than D’s disposition to commit such an act is admissible. Can use to prove/show: Motive Opportunity

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Intent Preparation Plan Knowledge Identity Absence of mistake or accident In sexual crime, D did not act in good faith about consent of victim.

d. FEDERAL RULE 404(b)i. Evidence of other crimes/acts, if not admissible to prove that the D acted in

accordance with his character generallyii. BUT admissible for other purposes:

Proof of motive Opportunity Intent Preparation Plan Knowledge Identity Absence of mistake or accident

iii. In a criminal case, the Prosecution must give noticeiv. This list is not mutually exclusive or exhaustive.

e. Specific other purposes i. Same transaction/Res gestae:

Complete the story of the crime Placing it in the context of nearby and contemporaneous happenings

ii. Larger Plan: Scheme, conspiracy Hypo (#3, page 397) D is charged with murdering V. Evidence at issue: a week before

the murder, D killed V’s cat. Result: Part of a larger scheme to harm V. Could try access to the scene of the crime exception as well. But on the whole, not a strong case to admit this.

Hypo (#5, page 397) As a condition of parole, D was required to live in a half-way house, is allowed to work during the day, but must return at night. On Oct. 10, during the daytime, an armored truck was robbed several miles from the house. D is charged with the crime. Evidence at issue: D was a sex offender and was required to return to the house and did not on that night. Result: admissible. Saying that the reason he did not comply with the rules, is because he committed the crime. He had the opportunity to stash the loot at night because he is gone, that is how to deal with the day v. night issue. (double check this one)

iii. Modus Operundi/Signature Must be a unique, distinctive act Must be close in time, so it is not a copycat crime. Tied to identity Carrillo : Defendant is convicted of a drug crime. The prosecution has a problem

because the officer has made a mistake in the past and he is the only evidence they have. They attempt to introduce the evidence that he has sold drugs in the same way before (placing in balloon and swallowing) and this establishes identity. But the method is too common to be a signature.

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Hypo 3 (426) – X is charged with grand theft auto from A. X’s defense is alibi. A testifies he is 85, that X was celebrating the birth of his son, put his arm around A, offered him a cigar, than left. When X checked his wallet was missing. Evidence at issue: the prosecution calls B who will testify that he is 84, that X did the same thing to him, but asked also asked for some street directions. Prosecutor says this is a common scheme or modus operundi. The Defense claims this is inadmissible character evidence and irrelevant. Result: the problem here is that other pick pockets could use this same con. We are not worried about the number here, because it is likely that one individual would do this. Otherwise, it is not really a signature. BUT the problem is that two months have passed. The most important thing is proximity of time. Fear that it is a copycat. There is enough of an argument so the result is unclear. We are using this evidence to supplement the identity, trying to bolster a shaky identification. If there is a problem of copycat, then this doesn’t help identify.

Hypo 4 (426) X is charged with murder of A. X’s version is that A, who lived in the same apartment, was visiting X, and an argument developed. A did a karate kick, X wrestled A and A died. Evidence at issue: The prosecution offers testimony that X kicked him in the ribs, that X pleaded to assault, and the testimony of C that he was a longtime acquaintance of C, and that X kicked him in the stomach. The prosecution is offering this to establish modus operundi to use feet. The prosecution claims that this is inadmissible character evidence and irrelevant. Result: the problem is that identity is not an issue here (so you probably can’t get the other acts in this way). There is no question because the Defendant admits the kicks. His defense is that it is self-defense. The MO argument does not fit. But it is still relevant, because it shows that he is likely to start a fight, then this would rebut his defense. The problem is that it is circumstantial character. So inadmissible because not relevant to a non-circumstantial purpose.

iv. Propensity for unusual and abnormal sexual relationsv. Knowledge/Absence of mistake of accident

Hypo 1 (397) Defendant is charged with possession with intent to sell. Prosecution shows that 35 plants were found in Defendant’s backyard. D claims he thought they were weeds. Evidence at issue: 15 years ago, D sold pot to an agent. Result: Admissible to show that the D had knowledge – he knows what pot looks like – this was not an accident. But, could also argue that they are different forms and he never had seen the plant. Defense would file a motion in limine to determine the nature of the evidence before hand.

vi. Motive Malice, specific intent Avoid punishment for a crime, obstruct justice Hypo 2 (397) D is accused of bank robbery. Evidence at issue: D is a drug addict. Do

not want the jury to infer that he committed the crime because he does drugs. This may not be that probative. Is there a danger of unfair prejudice? Yes. Does the dander outweigh the value? Find out that this is hard to say, a case we will talk about says, admissible.

Hypo 4 (397) D is charged with assassinating the president. Evidence at issue: not long after the assassination, the D shot a police officer when the D was stopped for a traffic citation. Result: this is offered to prove that the D was guilty of something because reacted so strongly to the police. So this may fit under McCormick 1 and 6, completing the story, tending to show he was trying to evade arrest. Almost every court would allow this.

Hypo 2 (426) X is charged with murder one of A, a police officer. B, a police officer, testifies that he was with A in a police car, and they stopped X, who was driving in an erratic fashion, that A asked X to step out, X complied , A asked X to raise his hands so he could be checked for weapons, then X shot A. Evidence at issue: Prosecution offers

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that A was on parole for a felony and was in violation of his parole, that 7 days earlier, X committed armed robbery, and X was riding in a stolen car. This prosecution is offering this under motive, intent and premeditation. The prosecution claims that this is inadmissible character evidence and irrelevant. Result: the evidence about parole is admissible to show that X shot the policeman because he was in violation of his parole and did not want to get in further trouble. The stolen care is admissible because it shows another reason why he feared the officer, had committed a crime and did not want to be arrested. This comes in under FRE 404b, court would allow all three and issue a limiting instruction.

Cunningham : (1996, pg. 409) Nurse is accused of stealing Demerol. Evidence at issue is past act that she was an addict and had been suspended. This seems like circumstantial character evidence, but it is being used to show that she had a motive whereas the other nurses on duty did not. This seems prejudicial but it is highly probative. The judge took notice of the prejudicial affect, so hard to say that there was an abuse.

vii. Opportunity Access to or presence at the scene of the crime.

viii. Identity Hypo 6 (397) D is accused of robbery. V picked D out of a lineup, but is not sure at

trial. Evidence at issue: to show ID, prosecution shows that D committed three robberies in the last six months. Prosecution claims that under 404b, it does not have to show similarities in the robberies. Inadmissible. It is clear that the only possible use is circumstantial character evidence, not enough.

f. CA Victims’ Bill of Rights: does not change the limits on character evidence.g. Lesson: Have to stretch evidence to make it fit under an exception.

i. Beasley (1987, pg. 401): D is charged with drug distribution. He claims he was using it in plant experiments. The prosecution has lots of evidence that he has dealt drugs before but it is inadmissible because it is pattern evidence – this is just circumstantial evidence, that he did it before, therefore he did it this time. The only piece of evidence that is relevant is evidence of a conversation where he talked about the market price of the drugs. The judge still has to balance this.

h. Evidentiary Standard i. Have to prove that the D committed the past act.ii. Majority/CA: Preponderance of the evidence. More likely than not that the D

committed the prior act.iii. Federal: The evidence must be sufficient that the jury would find that the other act

occurred. Huddleson : (1988, pg. 413) D accused of stealing video tapes and claims he did not

know that they were stolen. But he had gotten stolen televisions from the same person before.

iv. Tucker: Used clear and convincing evidence standard which is higher than preponderance but less than no reasonable doubt. D found V dead from shooting on his couch. There was a past event, 6 years ago, where D found a man dead from shooting on his dining room floor. This standard is to protect the D from having to re-litigate the case. This is a long time for signature evidence but it is so unusual.

v. It does not matter if the D was arrested and not charged, or even if tried but acquitted. The judge in the present case will decide if the evidence meets the standard.

7. HABITA. D efinition:

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I. Character is a specific response to a specified set of circumstances. It is one’s regular response to a repeated situation.

II. Example: Prof. takes the steps in Burns 2 at a time. Want to introduce this to show contributory negligence.

B. Prodecure: Typical method of proving habit is to have a person testify that he has observed a person over a period of time. Person must testify that he always responded the same way.

C. Scope: I. Often or regularly is not enough.

The court in Perrin suggested that 8 may be enough, but 4 or 5 probably was not. Perrin (1986, pg. 419) Victim’s family argue that the police shot him without

provocation. The police want to offer evidence that the victim was aggressive to cops in previous violent encounters. This is specific act evidence but the court calls it habit and admits most of it – some of it was prejudicial. This is stretching to the outer definitions of habit.

Hypo 5 (426) A sues X and Y bus company for damages for personal injury from a collision between a bus driven by X, an employee of Y bus company and a car driven by A. A claims that X failed to stop at a sign. Evidence at issue: A calls B who testifies that he has been a regular and daily rider on the bus driven by X during the six month period before the accident, but was not on the bus the day of the accident. A asks B whether, in this six-month period X habitually failed to come to a stop at the intersections where the accident took place. X and Y bus company made an inadmissible character and habit evidence objection to A’s question. Result: this is a repeated response to a specific situation. Admissible as habit evidence. Here there is no need/requirement of personal knowledge (i.e. of having been there to see the accident that day).

D. CALIFORNIA 1105I. Habit evidence is admissible to prove conduct on a specified occasion in conformity

with the habit or custom.II. Can use absence.

E. FEDERAL RULE 406I. Habit is admissible, without corroboration or eyewitnessesII. Routine practice of an organization is admissible

Example: company always records slip and fall accidents. Can use an absence of the record to show that there was no accident.

Example: requirement to punch a time card.8. RAPE SHIELD STATUTES

A. History: I. D could introduce evidence about the victim’s sexual past.II. Straight-forward character evidence: the woman consented earlier, so it is more

likely that she consented this time.III. Problem of unfair prejudice: a victim who had sex out of marriage, etc.IV. The movie, the Accused, was typicalV. Women feared being put on trial themselvesVI. States enacted legislationVII.Rationale: protect sexual privacy, protect women from harassment, prevent time on

side issues, encourage victim to come forward.VIII. All statutes have one exception: constitutional protection. The 6th Amendment

confrontation clause right to confront your accuser.

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B. Current Basic Rule: Generally, cannot introduce evidence of the victim’s sexual history.I. Exception: if consensual behavior occurred with the D before, it is admissible

because it is so probative. Cassidy (1985, pg. 428) Victim and D had prior relationship. She claims he attacked

her but he claims they had sex and she got hysterical. The D wants to introduce evidence that she did the same thing with another man. This is not relevant because she did not claim rape before. The evidence of the prior relationship of the victim and the D is relevant – the issue is whether it was consensual and this has high probative value.

II. Exception : Evidence of the victim’s sexual history may be introduced for other reasons. Attacks on credibility (impeachment) Motive to lie

Still subject to unfair prejudice Olden : (1988, pg. 432) Woman is accused of lying about the rape in order to protect

her relationship with her boyfriend from her husband. This is not covered by the rape shield statutes because while it is sexual act evidence, it is not used to prove that she consented because she had a relationship with a boyfriend. HELD: Evidence of a rape victim’s sexual relationships may be admitted to impeach the credibility of the victim.

Platero (1995, pg. 435) Security officer poses as a cop and drives away with a woman, leaving her male companion. The D wants to introduce evidence that she was having a relationship with her male companion and did not want him to know that she had consensual sex with the D. This is motive evidence in order to get around the shield statutes. Basically b/c D is offering to present to jury that she had a motive to fabricate her story, this evidence will be allowed in.

C. Statutes: I. CALIFORNIA 1103(B)(1)

Sexual history is not permissible to prove consent, but it is permissible to prove bias

Attacking the credibility of the complaining witness is o.k.II. FEDERAL RULE 412 – Sexual Offense Cases; Relevance of Alleged Victim’s Past

Sexual Behavior or Alleged Sexual Predisposition This evidence is not admissible in any Civil or Criminal case.

Evidence offered to prove that any alleged V engaged in other sexual behavior

Evidence of V’s prior sexual predisposition Exceptions:

A.) In Crim case following admissible:I.) Other info of sexual behavior of V to show other consequences of

rape (semen, injury – to allow D to explain this away)II.) Actual sex relations between V and D to show consentIII.) Evidence that other wise would violation D’s constitutional rights

if excluded9. SIMILAR HAPPENINGS

A. History : At Common Law, similar happenings were once inadmissible to prove basically anything.

B. Rule : CA and FRE admit similar happenings evidenceI. The proponent must show a sufficient similarity of circumstances, i.e. weatherII. The court will do a balancing test

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III. Timing: the events can happen before or after the incident in question, unless notice is an issue, then the events that occurred before the one in question will be the only ones admissible to prove notice.

C. Examples :I. Simon v. Kennebunkport : (1980, pg. 441) Woman falls on sidewalk and wants to introduce

evidence that 100 people fell in the same spot. This is relevant to notice: if other people fell, then the city was on notice. The evidence also shows that there was a defect. But if the people fell after this incident, then the evidence would only be admissible as to the defect, not the notice.

II. Problem (448) A sues X golf course for personal injury when A slipped and fell. A was walking on a new, cement veranda that had a smooth surface. A was wearing golf shoes. X calls B, the manager of the golf course to testify that during the year, there have never been any accidents, and that 3500-4000 people per month had walked across with golf shoes. A objects. This would be admissible. There is a clean safety record and thus, X could not have had notice. But if it was raining, X would have to show that the others had walked during the rain.

10. SUBSEQUENT PRECAUTIONS A. Rule : Generally, subsequent precautions are inadmissible unless an exception applies.

The exception must be disputed in the case.B. Rationale : We do not want to deter people from taking corrective safety measure to

ensure a similar accident does not happen in the future.C. CALIFORNIA 1151

I. Inadmissible to prove Negligence Culpable conduct

ii. Admissible to prove Impeachment (from the comments) Strict liability (not worried about policy because of market forces that would

tend to make manufacturers improve their product anyway in order to secure customer loyalty in their product.

D. FEDERAL 407I. Inadmissible to prove

Negligence Culpable conduct A defect in the product A defect in the design A defect in the warning Strict liability: (because of policy)

II. Admissible Ownership Control (if you can make changes to it, you must have some control over it) Feasibility of precautionary measures

e. Comes down to how broadly we interpret the exceptions i. Feasibility examples :

Broad view – admissible There is an alternative but it would not have been any better This is the only way

Narrow view – inadmissible If in my opinion, this was the right thing to do

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Engineer comes into court and says our traffic crossings are the best, and then changes the traffic crossing, this is not sufficient

Testimony that this is an accepted practice, followed by a majority (most courts)a.) Tuer : (1997, pg. 448) Allegation is that he doctors were negligent for not

administering Heparin (an anti-coagulant) while the patient was delayed in having surgery. After the death, the hospital changes its policy so that it will administer the drug with discretion depending on the condition of the patient. The decedent’s wife wants to admit this policy change to show that there was a problem with the doctor’s decision (that they were negligent in deciding the way they did). Feasibility: court says this exception does not apply because it was the best policy at the time, even though the risk of the person having complications due to taking the drug was not a 100% certain, the doctors felt the risk was high enough and not worth taking, therefore possible, but not feasible. The court adopts that narrow viewpoint in deciding feasibility in medical contexts..

ii. Control : After a child was injured after falling out of a tree in front of defendant’s house,

D denied on the stand that the tree was on his property, therefore not his problem. However, he subsequently trims the lower branches of the tree making it harder for kids to climb up it. This subsequent action is admissible to prove control.

iii. Impeachment : Tuer : Allegation is that the doctors were negligent for not administering Heparin while

the patient was delayed in having surgery. After the death, the hospital changes its policy so that it will administer the drug with discretion. On the stand when the doctors were asked whether administering Heparin before surgery would have been unsafe, the doctors testify that it would have been (even though after evaluating the safety of the drug after the death, they conclude that in that situation it would not have been unsafe, considering the consequences of not administering the drug would lead to death). Because of the changed policy (i.e., deciding the drug is now safe) the P wants to impeach the doctors. Impeachment: Because the doctor believed that at that time the best policy was to adhere to the belief that administering Heparin before surgery was unsafe (and due to fact this belief was the standard practice held in most hospitals) any subsequent remedial measures could not be used to impeach the doctors.

Problem 1 (457) A sues X, a store owner, for a slip and fall. A testifies that the step was slippery because a tape strip was worn out. X calls B, the store manager, who testifies that the strips were not slippery and the tape strip was not worn out. A offers subsequent remedial evidence to show that new strips were later installed by X. This is inadmissible to impeach B. B was not the one who replaces the strips (therefore not the one who honestly felt they were in need of replacing).

Problem 2 (458) A sues X, a store owner, for a slip and fall. A testifies that the step was slippery because a tape strip was worn out. X calls B, the store manager, who testifies that the steps were not slippery and that tape strip was not worn out. A offers subsequent precaution evidence that B authorized the installation of the new tape strips after the accident. This is now admissible. B’s actions are inconsistent with his testimony.

f. Procedure : Courts will grant discovery motions to inspect subsequent precaution evidence so that the proponent can inspect the evidence and determine whether it is admissible, and have it in case it becomes admissible. See problem 3 (458).

11. OFFERS IN COMPROMISE/SETTLEMENT OFFERS

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A. Rule : Statements made during settlement offers or negotiations are not admissible, they are excluded from trial.I. Hatfield : [Handout 6] Auction house admits that it did not protect the equipment in a

settlement letter. Court hold this is inadmissible under FRE 408.B. Rationale : We want to encourage settlements as opposed to court action.C. When do settlement negotiations begin?

I. There is no rule for when settlement negotiations begin, on the test, it has to be pretty clear that there are ongoing negotiations

II. Old rule: needed magic words to make inadmissible Problems: this lead to a lot of artificial and not completely honest negotiations,

you can’t be truthful completely with the facts, you have to couch your letter in technical terms.

III. Modern Rule: do not need magic words to make inadmissibleIV. Davidson : (1991, pg. 458) Aggressive demand letters are not settlements unless there is a

lawyer employed to draft the letter or there are magic words. P approaches loose bull and gets gored by bull. He writes a letter demanding that the company that was responsible for the loose steer pay for his injuries. He is later impeached by it (he states he was 10 feet away from bull, and later in court testifies he was 40 feet away). Court held this was admissible. HELD: In order to exclude statement from evidence as an offer in compromise, the party seeking exclusion must show that the statement was made in compromise negotiations. Problems with this decision – this punishes people who do not get lawyers. Williams

does not believe that the case was decided incorrectly, but is concerned with the message it sends and it not 100% convinced the letter is not a demand letter.

v. Problem 1 (467) A sues bus company for accident. At the scene, the driver admits that the blew the stop sign and offered stated that the bus company would pay 100% of the costs. In terms of the admission, it would be hearsay under Ca because the driver would need authorization. In terms of the settlement, this is even worse that Davidson, so it would be inadmissible. But some courts have held that this is a negotiation.

d. CALIFORNIA 1152i. Inadmissible unless to prove other things, such as bad faith insurance.ii. Problem 2 (467) A sues insurance company for intentional infliction of emotional distress.

A has disability policy with insurance company. The insurance company claims that A made misrepresentations on the policy application. A claims that the insurance company is acting in bad faith and offers a letter where the insurance company offers to pay A off in return for a release of the policy. Ca admitted the letter for purposes of showing bad faith, but not to show liability.

e. FEDERAL RULES 408, 409i. FRE 408

Evidence of 1) furnishing, offering, or promising to furnish OR 2) accepting, offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed is not admissible to prove liability, validity of claim or amount of claim.

Compromise evidence may be admissible to prove bias/prejudice of a witness, negating a contention of undue delay, or proving obstruction of a criminal investigation/prosecution.

ii. FRE 409 Evidence of offer or promise to pay medical, hospital or similar expenses for an

injury is inadmissible to prove liability for the injury.

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XXII. CROSS EXAMINATION AND IMPEACHMENT (Ways to impeach - B.I.C.C.C. = Bias, Inconsistent Statements, Character, Competency, Contradiction)

A. Objectives of Cross Examination

1. Reinforce parts of your own case2. Attack the credibility of your opponent’s case3. Attack the credibility of the witness on the stand4. Try to build another portion of your case that you didn’t do on direct

a. REMEMBER – even though we typically link cross-examination with the defense, the prosecution also conducts cross-examination of the D’s witnesses.

B. Ten Commandments of Cross Examination1. Be brief and succinct – never more than 3 points2. Short question, plain words3. Never ask anything but a leading question 4. Never ask a question to which you do not already know the answer5. Listen to the answer6. Don’t quarrel with the Witness7. Don’t give the witness the chance to repeat their story. If the jury hears it more than one,

they’ll probably believe it.8. Never permit the witness to explain everything – argue the points of inconsistency on

summation. 9. Avoid the one question too many – argue it in summation10. Save the ultimate point for summation

C. Leading Questions Rules1. No leading question on direct2. Exception: hostile witness. Must ask the court for permission to treat as a hostile witness

(must qualify the witness).a. California 776 – “Examination of adverse party of person id w/adverse party.”b. FRE 611(c) – “Mode and Order of Interrogation and Presentation; Leading questions”

i. “When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”

3. The federal rules are not as specific as California, the judges have more discretion.D. Contradiction v. Impeachment (Seems similar, although remember that contradiction is a

way by which you impeach a witness)1. Contradiction : Bringing in other witnesses or counter testimony, this is always allowed.

a. Problem 1 (458) A sues X, a store owner, for a slip and fall. A testifies that the step was slippery because a tape strip was worn out. X calls B, the store manager, who testifies that the steps were not slippery and the tape strip was not worn out.

2. Impeachment : to derogate credibility; call in question the veracity (truthfulness) of a witness, by means of evidence adduced for such purpose, or the adducing of proof that a witness is unworthy of belief; generally a witness may be impeached based on prior inconsistent statements, contradiction, incapacity, bias, or character flaws (character for telling lies).a. Show that person has poor reputation for truth and veracityb. Show that witness made inconsistent statementsc. Show witness is biasedd. Show witness has been convicted of crime which reflects on truth and veracity.

i. Problem 2 (458) A sues X, a store owner, for a slip and fall. A testifies that the step was slippery b/c a tape strip was worn out. X calls B, the store manager, who testifies that the

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steps were not slippery and the tape strip was not worn out. A offers subsequent precaution evidence that B authorized the installation of the new tape strips after the accident. This would tend to discredit the W’s statement that the strips were not worn out.

E. There are two ways to Impeach. Whenever you are allowed to use extrinsic evidence, you can cross, but there are times when you can cross, that you cannot use extrinsic evidence.1. Cross Examination2. Extrinsic evidence: evidence other than that coming out of the witness’ mouth on direct or

cross examination. This is where you bring in something else (other witness’ testimony, other documents, application) to attempt to contradict what the witness has said on the stand.

F. Impeach of One’s Own Witness1. Common law: could not impeach your own witness. You were said to “vouch” for the

truth of your witness, therefore you were not allowed to later try to impeach them.2. Modern rule: Both Ca. and Fed. Allow you to impeach your own witness

a. CEC 785 – “Parties may attack or support credibility”i. The credibility of a witness may be attacked or supported by any party, including

the party calling him.b. FRE 607 – “Who may impeach”

i. The credibility of a witness may be attacked by any party, including the party calling the witness.

3. Note: Want to avoid impeaching your own witness because it will look bad in front of the jury. If you think that your witness is going to turn out to be bad, it is better to call them as a hostile witness.

G. Cannot Call a Witness Solely for Impeachment Purposes1. If you know that the witness is going to deny an inadmissible piece of evidence or

statement, (in other words the only way you can get this evidence in through the witnesses testimony) you cannot call the witness solely for impeachment purposes.a. Hogan – (1985, pg. 477) Government tells jury in opening statement that the pilot will deny

everything. Then calls pilot, and tries to impeach him with his own prior statement – which was an admission.

2. Rationale: we cannot trust the limiting instruction to the jury that would be made3. If you show that there is a chance that the witness would “give in” under the impeachment,

then can bring it in. H. Scope of Cross Examination

1. When cross-examining the witness about details, then the cross-examination is limited to the scope of the direct examination.a. CEC 7611, 7732

b. FRE 611(b)3 – Scope of Cross Examination2. If cross-examining for impeachment, can go outside the scope.

a. Test for bias, prejudice, memory, lying, inconsistency.

1 § 761 – Cross Examination“Cross Examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.2 § 773 – Cross Examination(a ) A witness examined by one party may be cross examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs/(b) The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.3 § 611(b)Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

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b. California – does not have a specific provision, but it is allowed c. Federal 611

I. Collateral Matter Rule1. Collateral : By the side; at the side; in evidence, collateral refers to questions or issues

which are not directly involved in the matter or action at hand. Ask – Could the prosecutor put on the evidence as part of their case in chief (or for irrelevancy purposes would they be prohibited from doing so)? If not, then collateral.

2. Rule : Cross examination is allowed on collateral issues. However, the cross examining party is confined to the answers that the witness gives on cross examination. Cannot introduce extrinsic evidence.

3. Statutes : a. CEC 7804 – “Testimony; proof of truthfulness; considerations.”

i. Judge should weigh the collateral issue in terms of prejudice and waste of time. In effect, the collateral rule is enforced through a balancing test.

b. Federal – follows the collateral rule although it is not codified.4. Examples :

a. Oswalt (1963, pg. 482) – in order to impeach the credibility of Oswalt (D) who claimed to be in another city on the day of the robbery with which he was charged, the prosecution introduced evidence that one month before the robbery, Oswalt was in Seattle. However, this matter was collateral to the case b/c the D was not asserting that he was not in Seattle one month before the robbery, he is just saying that he was not in Seattle on the day in question.

b. Copelin (1993, pg. 484) – D raises the issue of whether he know what cocaine looked like, he claims he only knows this due to what he has seen on TV. The government wants to show that this is a lie, he tested positive for cocaine use in the past so he must know what it looks like from first hand experience with it. The gov’t can bring up the drug tests, but they cannot introduce the results into evidence. They would be confined to the answers the witness gives.

c. Drake (1991, pg. 500) D testifies on direct about his educational background. The prosecution asks him on cross about his degree. She brings it up but does not introduce it. The evidence is collateral to the crime but the court seems to suggest that it is not collateral because the witness himself brought it up. Because this is so, then the prosecution can bring in extrinsic evidence. But regardless, the prosecution did not introduce it, so there wasn’t even any extrinsic evidence problems.

5. Anytime we are dealing with the witness’ credibility with respect to the case before the court, credibility is never considered collateral.

J. Impeachment Through Circumstantial Character Evidence (CCE)1. NOTE: PAST DISCUSSION ABOUT CCE WS WHEN TRYING TO PROVE

WHETHER THE DEFENDANT DID THE CRIME, NOW WE ARE TALKING ABOUT WHETHER THE WITNESS IS CREDIBLE. THESE ARE SEPARATE RULES.

4 § 780Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of this testimony at the hearing, including but not limited to any of the following:(a) His demeanor while testifying and the manner in which he testifies(b) The character of his testimony(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies(d) The extent of his opportunity to perceive any matter about which he testifies(e) His character for honesty or veracity or their opposites(f) The existence of nonexistence of a bias, interest, or other motive(g) A statement previously made by him that is consistent with this testimony at the hearing(h) A statement made by him that is inconsistent with any part of his testimony at the hearing(i) The existence or nonexistence of any fact testified to by him(j) His attitude toward the action in which he testifies or toward the giving of testimony(k) His admission of untruthfulness

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2. Once a witness testifies about anything, his truthfulness becomes a central issue in the case and he can be impeached. This is strong impeachment evidence!

3. Rule : In general, you can use reputation or opinion evidence to impeach.a. California allows this.b. FRE 608(a) allows this.

i. (a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness;

AND (2) evidence of truthful character is admissible only after the character of the

witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

4. Rule : The trick is that on cross-examination, at the discretion of the judge, you can use specific acts. But you cannot bring in extrinsic evidence if this fails – you are bound by the answer that the witness gives. You have to convince the judge that the specific acts evidence is valid.a. California 787 – Does not allow this type of evidence at all in a civil case!b. FRE 608(b) – Judge has discretion to allow in specific act extrinsic evidence but it will

most likely not get in.c. In some cases, the cross examiner can tell the witness that the extrinsic evidence is in

his possession, and then not show it, but this is risky. If the judge allows this, though, it is a powerful tool. Drake.

d. Examples:i. Owens (1985, pg. 490) – Military D is accused of shooting his second wife. Evidence at

issue is omissions from his military application. There are three bad acts he did not disclose: drugs, guns and assault on first wife. This suggests that he was dishonest. The evidence is not extrinsic because it was discussed during the cross-examination. This cross about the drugs and guns was admissible but the assault on the wife was considered too prejudicial.

ii. Problem 2a (499) Suppose that defense wants to impeach P witness with evidence that the witness claimed on an employment application to have gotten her masters, when she was in fact expelled from school for plagiarism and did not get her degree. It is only relevant as to truthfulness. The witness could be cross examined about the application. If she lied then, she could be lying on the stand. Similar to Owens.

iii. Problem 1 (524) P accuses D of product liability. P claims that D had knowledge. P witness is a disgruntled former employee. D seeks to impeach P. D offers that the witness lied on his resume. This is circumstantial character evidence – specific act. Can raise the issue on cross but cannot introduce the application. If decide to ask on cross, are limited to the answers that the witness gives.

iv. Problem 1a (499) – Suppose that Defense want to impeach P witness with evidence that a year before the trial, the witness was expelled from graduate school for plagiarism. It is only relevant as to truthfulness. The defense should be allowed to cross the witness about the plagiarism under the fed rules, but not under Ca. rules.

v. Problem 1b1 (499) Suppose that defense want to impeach P witness with evidence that a year before the trial, the witness was expelled from graduate school for plagiarism. It is only relevant as to truthfulness. The witness denies plagiarism. The defense has a copy of the school report. This will not be allowed in under fed or CA rules b/c it is extrinsic evidence of specific act.

5. Rule : If the W admits that the specific act evidence – extrinsic evidence is valid, courts are divided as to whether to admit it. EXAM: NOT ADMISSIBLE.

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a. Problem 1b2 (499) Suppose that Defense want to impeach P witness with evidence that a year before the trial, the witness was expelled from graduate school for plagiarism. It is only relevant as to truthfulness. The witness denies the plagiarism. The defense has a copy of the school report. The witness then later admits the report is valid but still denies that it is true (claims the school made a mistake). Courts are divided on whether to allow it into evidence now. Some argue that the rule has been satisfied because there is no need to litigate the foundation for the document, it will not take up time, etc. BUT, FOR EXAM if W denies its truthfulness – it is not admissible.

6. Rule : If the witness denies that the specific act evidence is true, the extrinsic evidence can be used to refresh memory – outside the presence of the jury.a. Problem 2b – (499) Suppose that defense want to impeach P witness with evidence that the

witness claimed on an employment application to have gotten her masters, when she was actually expelled from school for plagiarism and did not get her degree. It is only relevant for truthfulness. If the witness denies that she claimed a master’s degree on her application, the defense can show her the application outside the presence of the jury. Usually, though the attorney will try to get it shown before the jury, and the other attorney will try to remove it.

K. Prior Felony Convictions1. CALIFORNIA – Constitution Art. 1 § 28

a. Constitutional amendment states that in all criminal proceedings, a felony conviction can be used to impeach a witness’s credibility. Note: This is much more expansive than the Federal Rule.

b. General balancing test still need to be done. The judge must:i. State on the record why it is probativeii. That there is no unfair prejudiceiii. There is a jury instruction

c. Must be a crime of “moral turpitude”i. Most felonies involve moral turpitude ii. What cannot be used:

Conspiracy to commit a misdemeanor Conspiracy to tattoo a minor Simple possession of a controlled substance Convictions where pardons were issued

iii. Do not need to know what applies in a civil case – too complicated Castro (handout)

2. FEDERAL 609(a)(1) (confirm with Williams b & c)a. Can introduce a felony punishable by more than one yearb. Balancing Test for Criminal Defendant: use internal balancing test – gov’t has to show

that he probative value outweighs the prejudice. Usually when the prior conviction is the same as the current crime, the danger of prejudice is too high.

c. Balancing Test for Witness Other than Defendant: use normal balancing test (FRE -403). Evidence will not be admissible if substantially outweighs probative value. Burden is on the witness.

d. Conviction more than 10 years old (from date of conviction or release) cannot be used unless passes balancing test and proponent informs the D that this will be used.

e. Convictions where pardons were issued cannot be used.f. Juvenile convictions usually cannot be used.

i. Sanders (1992, pg. 504) Error found b/c court did not properly balance and the evidence was too prejudicial. Defendant was charged with assault/possession of a shank.

3. FEDERAL 609(a)(2) a. Crimes involving dishonesty are admissible

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b. No balancing testc. Narrow definition of dishonesty – offense must involve some element of deceit,

untruthfulness or falsification like:i. Perjury; Subordination of perjury; False statement; Criminal fraud; Embezzlement;

False Pretenseii. Brackeen (1992, pg. 513) – Bank robbery does not per se qualify as a crime of dishonesty

under FRE 609(a)(2).iii. Wong (1983, pg. 510) – A court does not have discretion to exclude as unduly prejudicial

evidence that a W had previously been convicted of a crime involving dishonesty or false statement.

d. No need to litigate the particular facts of the crime, will consider the whether the crime in general is one of dishonesty.

e. Examples:i. Problem 1a (516) D is accused of murdering her father and testifies to her alibi. She calls

her minister as a character witness. W testifies that he believes the W is peaceable and nonviolent. Prosecution has evidence that within the past 5 years, D was convicted of petty larceny. Under Fed, not a felony, so inadmissible. Under California rule, not a felony but is it a crime of moral turpitude? Cannot look at the underlying facts.

ii. Problem 1b (516) Same as above but Prosecution has evidence that within the past 5 years, D was convicted of disturbing the peace when she threw her meal at the waiter. This is neither a felony nor a crime of dishonesty – but it might be used to impeach (discredit) the minister because she vouched on the stand for her peaceable nature.

iii. Problem 2 (517) W for the Prosecution testifies that he saw D leaving the murder scene. D wants to impeach witness w/evidence that W was arrested for drugs six weeks before the crime. The case is still pending. Inadmissible because need a conviction – an arrest will not suffice.

f. Defendants not taking the stand i. D cannot appeal a motion in limine to exclude evidence of prior conviction unless

he takes the stand.ii. Cannot predict what would have happened if the D took the stand – no way to tell

whether the judge was correct to allow the prosecution to cross with the prior conviction evidence. Luce (1984, pg. 517) – D want to exclude evidence in a motion in limine of evidence of

a similar past offense he was convicted of. However, judge decides to allow this evidence in anyway. Therefore, the D does not testify b/c that way he can keep this evidence out. Upon appeal, D’s claim of an improper impeachment with a prior conviction is denied. (Don’t really understand this case, ask Williams)

L. Bad Reputation for Truth and Veracity1. We allow evidence that the W has a bad reputation for telling the truth, but we do not allow

impeachment for other kinds of character flaws, such as having a bad memory.2. CALIFORNIA 786 (double check with Williams)

a. In a civil case, evidence of traits of character other than that for truthfulness and veracity may not be admitted.

b. In a criminal case, however, due to the “Victim’s Bill of Rights” you can impeach a witness with evidence other than truthfulness (like bad memory, bad reputation, etc.).

3. FEDERAL 608(a) – truthfulness only and only when has been attacked first.4. Examples:

a. Problem (520) D has been prosecuted for the sale of heroin to a police informer. A police informer testifies that he made a purchase for the D. The D calls a witness, who is a neighbor of the police informer. The W says that he has know the police informer for 10 years and that

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he has a poor reputation for memory. In Ca. this would be allowed because you can attack any aspect. In federal inadmissible because not being used for truthfulness.

b. Problem 2 (524) P accuses D of product liability. P claims that D has knowledge. P witness is a disgruntled former employee. D seeks to impeach P. D offers that the W is a drug addict. This is not relevant. Would have to try to show that he was on drugs on that day and this would have affected his capacity for truthfulness. This is not a criminal case, so cannot bring this in anyway.

M. Psychiatric Condition1. Common law : problems with this but science has gotten better and courts have gotten more

comfortable with this type of evidence.2. Rule : Evidence of condition is admissible to impeach a witness as long as relevant, not

unfairly prejudicial and there is a connection made between the condition and the W’s capacity for truthfulness.

3. Have to be specific as to the condition :a. Psychosesb. Neurosesc. Defects in the structure of the nervous systemd. Mental deficiencye. Alcoholismf. Drug addictiong. Psychopathic personality

4. Have to introduce the nature of the illness and what its impact would be on credibility, reflection on reality, perception:a. Typically need to make a showing using an expert/treatiseb. One limitation is unfair prejudicec. Lindstrom (1983, pg. 521) – D attacks Prosecution W who has a history of living in a fantasy

world and has vendettas as a part of her illness.d. Problem 4 (524) – P accuses D of product liability. P claims that D had knowledge. P W is a

disgruntled former employee. D seeks to impeach P. D offers that the W has secret plans to assassinate the Pope, the president and the dalai lama. Would have to introduce evidence that people who are psychotic like this have a problem making a distinction between what is real and what is not. Have to call a W to establish the connection.

N. Inconsistent Statements1. Definition: A statement that is inconsistent with the witness’ testimony2. Inconsistent statement is not hearsay b/c it is not being used for the truth of the matter

asserted. It is, theoretically, being used to show that the witness blows hot and cold and therefore we cannot be sure of anything that she says.

3. Hypo: W gets on the stand and says “Red car went through the stop sign and was going 60 mph.” Before the trial, the witness said “Red car did not go through the stop sign, it was going through about 30 miles an hour and stopped.” The jury does not know which story to believe.

4. Common Law : need to establish a foundation before introducing to the jury the witness’ prior inconsistent statements. Courts however, now have moved away from this requirement that was expounded in Coles (pg. 545).

5. Modern Rule : a. Can introduce extrinsic evidence if it is a substantive issue in the case b. The inconsistent statement can be oral or written.c. Have to give the witness a chance to explain/deny the inconsistency at some point.

6. CALIFORNIA 768-770, 1235a. Inconsistent statement can be made at any time (double check this with Williams)

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b. No need to show witness the evidence, but if do then all parties must be shown it before the witness\may be asked about it.

c. If you meet the procedure of the rules, admissible for both impeachment and as substantive evidence (to prove the matter asserted).

7. FEDERAL 613 and 801(d)(1)(A)a. Inconsistent statement must be made prior to testimonyb. If declarant testifies at trial, is subject to cross-examination concerning the statement,

the statement is inconsistent with the declarant’s testimony and if prior statement is made under oath - it is defined as “non-hearsay” and can be used for both impeachment and to prove the matter asserted.

c. If not under oath, can only be used for impeachmentd. No need to provide evidence, but if opposing counsel asks you have to disclose the

inconsistent statement to him.8. Lack of memory cannot be impeached by prior statement. BUT if the lack of memory is

suspect, and the record supports this, it maybe considered inconsistent.a. Problem 1 (545) D is charged with murder. He claims self-defense. D witness testifies that

before the killing the D and the victim were fighting and that the D was trying to retreat. At the trial, the D witness says that he has no recollections of talking to the prosecution witness. The prosecution calls their witness to testify that a week after the killing, the D witness told him that he had heard the D say the he was going to get a gun and shoot the victim. The book says that this is inconsistent. Williams suggests it is not (make sure to look for handout).

b. Problem 3 (545) D is prosecuted for robbery. His codefendant is convicted first. At trial, the codefendant testifies that he did the crime and says that he does not remember if the D was with him. He does not remember whether he gave a statement to the police officer about the D being with him. The police officer will testify to what the codefendant told him. A CA. case lets this in. Under the Fed rules, problematic. Some courts have held that if memory is suspect, can be allowed in.

O. Prior Consistent Statements1. Prior consistent statements – prior inconsistent statement – consistent testimony is OKAY.2. Prior inconsistent statement – improper influence – consistent statement – consistent

testimony – NOT OKAY.a. Must be made prior to influence/motive to fabricate arose.b. Tome (1995, pg. 544) child abuse case. Must occur before improper influence occurred. Child

statement must made before mother tells her that she can live with her if she says “X.”3. CALIFORNIA

a. CA 791:i. Evidence of a statement previously made by a witness that is consistent with his

testimony at the hearing is inadmissible to support his credibility unless it is offered after: Prior statements that are inconsistent with what he said at trial are introduced for

the purpose of attacking his credibility. Charge made that his testimony has been recently fabricated or influenced by

bias or other improper motive.b. CA 1236: can use to rehabilitate, bolster, and prove the matter asserted if meet 791.

4. FRE 801(1)(d)(b)a. Defined as not hearsayb. Does not have to be under oath

P. Bias1. Rule : You can always impeach a witness for bias.2. Bias can be shown by:

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a. Relativesb. Significant othersc. Common membership in an organizationd. Witness’ dislike towards a partye. Cutting deals, immunityf. Bought testimony by one of the counsel

3. You can use extrinsic evidence4. CALIFORNIA 780(f)5. FEDERAL does not allow specific rules, but follows CA guidelines6. Examples:

a. Able (1984, pg. 545) Federal case. D is charged with robbery and has an alibi. The D calls the alibi witness. The gov’t brings in another witness to impeach the defense witness. There is a danger of prejudice because the defense witness belongs to the Aryan brotherhood but the court issues proper limitation on how the organization is used. The SC says that you can always impeach with bias even though the federal rules do not say this b/c of the CL. The defense witness was biased b/c he was part of this organization.

b. Problem 3 (524) P accuses D of product liability. P claims that D had knowledge. P witness is a disgruntled former employee D seeks to impeach P. D offers that the witness sabotaged his computer at work before he quit his job. Can use this to prove bias, so it is admissible.

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