Evidence

Hearsay

1. Out-of-court

2. Statement

3. Offered for its truth

   • Examples of statements that are not offered for their truth:

     • To show their effect on the listener

     • If the statement is offered for its falsity rather than its truth

Missing witness inferences

• It’s permissible for the jury to draw a negative inference from the absence of a witness only if one of the parties has control over the missing witness

  • E.g., if an employer fails to call their employee as a witness, and the employee is still in the employ of the employer, it’s permissible for the jury to draw a negative inference from the employee’s absence

When is extrinsic evidence allowed/not allowed

Allowed:

• Impeachment via prior inconsistent statement

  • EE allowed so long as not on a collateral matter and so long as witness given opportunity to explain or deny PIS

• Impeachment via bias

  • EE allowed so long as witness given opportunity to explain or deny PIS

• Impeachment via prior conviction

  • EE allowed if D denies the prior conviction

Not allowed:

• When impeaching a witness with character evidence, regardless of whether the character evidence is opinion, reputation, or specific acts

What it means for a witness to be unavailable

• Privileged from testifying

• Death or illness prevent testimony

• Reasonable means can procure the witness

• Witness refuses to testify despite court order

• Witness unable to remember

Fact heuristics

• If writing, recording, discuss BER

• If there is more than one party doing the crime, think conspiracy and see if there are party opponent statements

• If criminal case and there’s hearsay, discuss if it’s testimonial or not, and then discuss Confrontation Clause implications

• If machine involved, question if there’s a statement at all

• If there’s a defense to the effect that someone thought X, then probably none of the statements are being offered for their truth and instead all of them are being offered to show their effect on the listener

Exemptions to hearsay (i.e., not hearsay)

1. Prior inconsistent statements provided that they are sworn

   • Admissible for truth and impeachment

   • Note: contrast this with using prior inconsistent statements to impeach, where there is no requirement that they be sworn

2. Prior consistent statements

   • Admissible for truth and impeachment if they rehabilitate the witness

     • Rehabilitation = witness was attacked earlier in the trial

3. Prior identification

4. Party opponent statements—i.e., statements you make either yourself or that get attributed to you

   • For co-conspirators statements, there must be a co-conspirator relationship, and statement must have been made during the course of the conspiracy & in furtherance of the conspiracy

Exceptions to hearsay when declarant unavailable

1. Statement against interest

   • Must be against penal or pecuniary interest

   • There must be some (though not to the level of beyond a reasonable doubt) corroborating circumstances

2. Dying declaration

   • Admissible in homicide and civil cases

3. Former testimony

   • Need either:

     • Sufficiently similar interests

     • Privity (successor in interest)

Exceptions to hearsay regardless of availability

1. Present sense impressions

   • Statement must be corroborated somehow

2. Excited utterance

3. Statements for medical treatment or diagnosis

   1. Statements of fault often inadmissible, because not often relevant to medical treatment/diagnosis. On the other hand, statements of causation often are admissible, because they are relevant to treatment/diagnosis

4. Statements of mental state/mind

   • Cannot be used to prove a statement of memory of belief

   • Statements made in anticipation of litigation fine so long as made for treatment/diagnosis

5. Past recollection recorded

   • Witness must be on the stand

   • If refreshing their memory doesn’t work, then notes can be read in to evidence if witness affirms that they were the ones taking the notes and that the notes were accurate at the time they took them

     • Note that the notes themselves cannot be entered into evidence by the party offering them; only the adverse party can enter the notes themselves into the record

   • Courts may allow Ds to examine these if witness used them to refresh memory, and must allow examination it witness used them during testimony

6. Business records

   • Must be of regularly conducted activity, regularly recorded

     • Individual must have personal knowledge of what they’re recording and must have a business duty to report it

   • After that, opponent bears burden of challenging trustworthiness, e.g.,

     • Business duty problem

     • Bad motivation (i.e., prepared for litigation)

     • Expert opinions in these still subject to Daubert

7. Absence of business records

8. Public records—the record should

   • Describe activities of the agency,

   • Be prepared in accordance with a duty imposed by law, or

   • Report the facts of an investigation duly authorized by law

9. Absence of public records

10. Ancient documents

11. Admissible if generated before January 1, 2018

12. Learned treatises

Types of evidence typically excluded

• Subsequent remedial measures

  • Except for when to establish:

    • Ownership or control

    • That it was not feasible to take a certain precaution

    • That the other party destroyed evidence

• Statements made in settlement discussions

  • Requires a dispute

• Offers to pay medical expenses

  • No dispute required, but under FER, statements of fact besides the offer remain admissible

• Plea negotiations

  • Only for plea negotiations for/with D

• Evidence of insurance

  • To the extent that the insurance will be used to show liability or negligence

• Rape shield

  • If sexual misconduct at issue

    • Evidence of victim’s sexual behavior is generally inadmissible

    • Evidence of D’s prior sexual acts is almost guaranteed to come in

Requirements for lay testimony

• Personal knowledge

• Helpful to the jury

Requirements for expert testimony

• Basic

  • Helpful to the jury

• Specific to experts—judge must determine if expert is:

  • Relying on sufficient facts or data

  • Using a reliable methodology

  • Standard: preponderance of the evidence

• Daubert

  • Falsifiable

  • Peer review

  • Protocols

  • Low rate of error

  • General acceptance of methodology

Qualifications for being an expert:

• Training

• Education

• Experience

Notes:

• Expert do not need personal knowledge

• Experts may rely on inadmissible information, provided that it’s the kind of information other experts in the field would rely upon

• Must mitigate against becoming a “conduit” witness, meaning expert should not disclose the basis for their opinion unless reverse 403

Testimony on ultimate issues

Experts may do so if helpful (e.g., medical malpractice), but in criminal cases, can’t use D’s name and can’t use absolutes.

Residual hearsay exception

Provided that grand jury testimony is never admissible against a criminal D… proponent must:

1. Show a sufficient guarantee of trustworthiness. Three types of arguments:

   • Near miss—facts nearly miss an exception

   • Circumstances show that declarant is telling the truth

   • Corroboration

2. Show that the evidence is more probative than anything else available

3. Give pre-trial notice of intent to use the evidence

Expert opinions on criminal D mental states

…are prohibited.

Character evidence flowchart

The central question: why is this evidence being offered?

1. To prove conduct in conformity with character

   • Inadmissible outside of narrow exceptions

2. For a non-character purpose

   • MIMIC

3. To impeach or rehabilitate a witness

Character evidence - branch 1: used to prove conduct in conformity with character

• Inadmissible outside of narrow exceptions

• Exceptions

  • Civil cases

    • Where character is the ultimate issue (negligent entrustment, libel, etc.) then you can use reputation, opinion, and specific acts

  • Criminal case

    • Where character is the ultimate issue (negligent entrustment, libel, etc.) then you can use reputation, opinion, and specific acts

    • D is a criminal defendant and wants to admit (pertinent) evidence of his own good character trait or of a victim’s character trait

      • Where character is not the ultimate issue, specific acts are not admissible, meaning only opinion and reputation are admissible

      • Where character is the ultimate issue (negligent entrustment, libel, etc.) then specific acts are fine

    • If D is charged with sexual assault or child molestation, prior specific acts are fine

    • If D or a witness opens the door by admitting character evidence, prosecutor can attack D:

      • On direct, with

        • Opinion

        • Reputation

      • On cross, with

        • Prior specific acts

        • No EE allowed

Three forms of character evidence:

• Reputation

• Opinion

• Specific acts

Character evidence - branch 2: used for non-character purposes

• Motive

• Intent

• Mistake (absence of)

• Identity

• Common plan

Character evidence - branch 3: used to impeach or rehabilitate

Impeaching with character evidence, only as related to truthfulness (this is 608):

• Opinion

• Reputation

• Prior specific acts of untruthfulness

  • No EE allowed

Impeaching with other evidence:

• Bias

• Prior (sworn) inconsistent statement

  • If sworn, can be used for truth and for impeachment, because sworn prior inconsistent statements are exempted from the hearsay definition

    • Prior statement must have been under oath at trial, hearing, deposition, or other proceeding

  • If not sworn, can be used for impeachment

  • In all cases, witness must be given opportunity to explain or deny inconsistency

  • EE not allowed on collateral matters

• Contradiction

• Sensory/perception defect

• Criminal convictions

  • This is the 609 flowchart (note that this is relevant only if impeaching with prior convictions; if D never took the stand, you are not barred by the time limit and can admit past convictions if they are relevant for non-character purposes)

    • More than 10 years ago? » reverse 403

    • Fewer than 10 years ago?

      • Related to truth-telling

        • Yes » auto-admit

        • No

          • Felony

            • Yes

              • Criminal

                • Yes » probative value greater than prejudicial effect

                • No » 403

            • No » inadmissible

Bolstering character:

• Evidence bolstering a witness’ character is inadmissible if the witness’ credibility has not yet been attacked

Note: you can impeach hearsay declarants just like you can impeach those in court, except for you can’t impeach them with prior bad-acts that are not automatically admitted under 609.

Best Evidence Rule

If you have a document (recording, photograph, X-ray, etc.) and it’s material to the case, you have to produce the original.

But… copies are also fine.

If you don’t have the original and you don’t have copies, you can prove up the contents so long as you have a good reason for not having the original and copies.

Authentication

Evidence must be authenticated to be admissible, but the initial threshold is quite low, and if there are circumstantial facts that indicate a juror could find the evidence authentic then it can go to the jury.

CEC distinction: starting the essay

In California, under Prop 8, for criminal cases all relevant evidence is admissible, provided that Prop 8 does not affect:

1. Exclusionary rules under the Constitution

2. Hearsay rules

3. Limits on character evidence to prove defendant’s conduct (defendant must still open the door)

4. Limits on character evidence to prove victim’s conduct (rape shield)

5. The Best Evidence Rule

6. CEC 352, the California version of 403

7. Privileges that existed in 1982

8. Exclusionary rules adopted by California legislature by 2/3 majority after 1982

9. Member of media still can’t be held in contempt for refusing to reveal a source

CEC distinction: prior inconsistent statements

Broader than FRE.

No requirement for prior statement to be:

• Under oath

• The product of a trial, hearing, or deposition

CEC distinction: present sense impressions

Called “contemporaneous statement.” Narrower than FRE.

Must be:

• Offered to explain, qualify, or make understandable conduct of declarant (puts focus on declarant)

• Made while (not after) declarant is engaged in the conduct (rather than immediately after)

CEC distinction: public records

• CEC allows matters observed by police to be admitted against a criminal D (FRE does not)

CEC distinction: learned treatises exception

• Admissible only for facts of general notoriety and interest

CEC distinction: business records exception

• Opinions and diagnoses are not allowed

CEC distinction: declarant unavailability

• If witness refuses to testify, must be because of fear

• If witness unable to remember, must be complete memory loss

CEC distinction: dying declarations

Broader than FRE.

Differences:

• Can be for any case, not just homicide and civil cases

• Declarant must have died

“OJ” exception:

• Statements describing abuse or threat of injury can come in

CEC distinction: residual hearsay exception

Doesn’t exist in CA.

CEC distinction: expert opinions

Broader than FRE.

Must meet requirements of Kelly-Frye:

• Central standard: there must be general agreement among the scientific community that the methodology is reliable

CEC distinction: former testimony

• FRE requires predecessor in interest relationship (though courts read this more broadly in practice)

• CEC allows anyone with a similar interest who had a similar motive and opportunity to cross

CEC distinction: declarations against interest

• Declarations against social interest also count

CEC distinction: summary [incomplete]

1. Propensity evidence in sex cases

   • Admissible for domestic violence and child abuse, too

2. Mercy rule for character evidence

   • [built out]

3. Impeachment by convictions

   • Judge weighs, instead of 609

4. Expert testimony

   • Kelly-Frye, meaning just reliable method, correct scientific procedures, and proper qualification of witness as an expert

5. Residual hearsay

   • Doesn’t exist

6. Dying declarations

   • Not limited to homicide + civil, but D must have died

7. Present sense impressions

   • Focused on declarant

8. Prior inconsistent statements

   • Do not need to be sworn to be admissible for any purpose

Statements recognizes as not hearsay because not offered for TOMA

• Statements with independent legal significance

• Statements offered to show effect on the listener

• Statements offered to show speaker’s or writer’s knowledge of facts stated

• Statements offered to show circumstantial evidence of state of mind

CEC distinction: judicial notice

• Whether requested or not, the court must take judicial notice of matters generally known within the jurisdiction (no distinction b/w criminal and civil cases)

Judicial notice

• To compel judicial notice, parties must request that the court take notice

• For criminal cases, jury may accept the judicially noticed fact

• For civil cases, jury must accept the judicially noticed fact

Presumptions

• Civil presumptions shift the burden of production.

• Criminal presumptions are never allowed.

• Neither civil nor criminal presumptions shift the burden of proof

Relevance

• Logical relevance

  • Logically relevant if has a tendency to prove or disprove a material fact

• Legal relevance

  • Legally relevant if it makes it past the 403 balancing test

Fact vs. opinion testimony

Lay witnesses may testify about facts and opinions based on their perceptions. May not be based on scientific or specialized knowledge.

CEC distinction: subsequent remedial measures

• FRE says that in products liability case, evidence of safety measures not admissible to show defective design; CEC doesn’t have this

CEC distinction: offers to pay medical expenses

• FRE says that facts said alongside the offer to pay expenses are admissible

• CEC says that even those facts are not

CEC distinction: settlement offers

• Mediation proceedings are also not admissible

CEC distinction: plea negotiations

• FRE excludes these

• Under Prop 8, these are admissible

CEC distinction: expressions of sympathy

• FRE does not cover/exclude these

• CEC says they’re inadmissible in civil actions related to the death or suffering of an accident victim

  • Note: statements of fault made in connection with the statement of sympathy remain admissible

CEC distinction: role of judge

• FRE: trial judge may call witnesses and ask questions

• CEC: trial judge incompetent to testify at the trial, if a party objects

CEC distinction: present recollection refreshed

• CEC: The writing must be produced. If the writing is not produced, the testimony will be stricken unless the document is unavailable.

CEC distinction: lay opinion testimony

• FRE: lay opinion testimony may not be based on scientific or specialized knowledge

• CEC: no restriction like in FRE

CEC distinction: attorney-client privilege

• Privilege holder can stop eavesdroppers from revealing the information they obtained

• Privilege expires after client dies, their estate is fully distributed, and their personal representative is fully discharged

• Has an extra crime/fraud exception: lawyer may break the privilege if they reasonably believe disclosure is necessary to prevent a crime likely to result in death or serious bodily harm

CEC distinction: patient-doctor privilege

• FRE: doesn’t exist

• CEC: exists only for statements made to medical personnel for purpose of medical diagnosis or treatment

  • Exceptions

    • Patient puts physical condition in issue

    • Doctor’s assistance sought to aid wrongdoing

    • Dispute b/w doctor and patient

    • Doctor is required to report the information

CEC distinction: psychotherapist-patient privilege

• FRE: exists

• CRE: exists but with exceptions

  • Patient puts mental condition in issue

  • Therapist’s assistance sought to aid wrongdoing

  • Dispute b/w therapist and patient

  • Patient is a danger to self or others

  • Therapist is court-appointed

  • Patient is a minor and possible crime victim

CEC distinction: martial privilege

• FRE: applies to criminal cases only

• CEC: applies to criminal and civil cases

CEC distinction: other privileges

• Counselor/victim privilege for counselors for abuse/assault victims

• Clergy privilege for penitential communications

• New reports are immune from contempt for refusing to disclose sources

CEC distinction: character evidence

Civil cases:

• Character cannot be admitted for sexual assault or child molestation (contra FRE)

Criminal cases:

• If D offers evidence that P is violent, prosecution can offer evidence that D is violent

  • Narrower than FRE, which just says that if D offers evidence of P’s character (not just for violence) then prosecution can offer evidence that D had that same trait

• In prosecution for domestic violence or elder abuse, prosecution may offer evidence of prior acts of domestic violence or elder abuse

• If D claims P was first aggressor, prosecution cannot offer evidence that P is peaceful (contra FRE)

• For D’s character

  • On cross, only reputation and opinion allowed to rebut, and never specific acts

• For P’s character

  • On direct, all three of opinion, reputation, specific acts allowed (vs. under FRE, specific acts not allowed)

CEC distinction: specific bad acts probative of truthfulness, used to impeach

• FRE: allowed on cross subject to 403, but no EE

• CEC:

  • Civil: cross not allowed, and EE not allowed

  • Criminal: cross and EE both allowed

CEC distinction: impeachments with criminal convictions related to truth

CEC:

• No time limits

• If felony:

  • Not expunged, pardoned, etc.

  • Involves moral turpitude

  • Makes it past 352

• If misdemeanor:

  • Civil: can’t be used

  • Criminal: allowed only if involve moral turpitude

Form-of-questions objections

• Leading questions

  • Allowed on cross, or if witness is hostile

• Compound (multiple questions)

• Calls for narrative

• Calls for speculation

• Assumes fact not in evidence

• Argumentnative

• Asked and answered

• Relevance

• Hearsay

• Character

• Impeachment

CEC distinction: relevance

• The fact in question must be disputed

CEC distinction: party opponent statements

• CEC calls this an exception rather than an exemption

• For employees/agents, CEC says that employee’s/agent’s statement gets attributed to the employer only if it is the employee’s negligent conduct that is the basis for the employer’s liability

CEC distinction: statements for medical treatment or diagnosis

• CEC allows these in (as an exception to hearsay) only if it relates to child abuse