Evidence Law

General Principles of Evidence Admissibility

• Relevance Requirements: In order for evidence to be admissible in a court of law, it must satisfy two conditions: it must be both logically and legally relevant.

• Logical Relevance:

  • Federal Rules of Evidence (FRE): Evidence is considered logically relevant when it possesses any tendency to make a fact of consequence to the determination of the action more or less probable than it would be without the evidence.

  • California (CA) Rule: The rule is simplified stating that evidence is relevant if it is material to a disputed fact.

• Legal Relevance: Evidence may be excluded even if logically relevant if its probative value is substantially outweighed by certain dangers, including:

  • Unfair prejudice.

  • Confusing issues.

  • Misleading the jury.

  • Undue delay.

  • Wasting time.

  • Being needlessly cumulative.

• California Proposition $8$ (Prop $8$): This is known as the "Victim's Bill of Rights" and applies to all criminal cases in California. It provides that all relevant evidence is admissible, subject to judicial balancing. There are six specific exceptions to Proposition $8$:

  1. The Exclusionary Rule.

  2. The Secondary/Best Evidence Rule.

  3. Hearsay exclusions.

  4. Rape shield rules.

  5. Privilege exclusions.

  6. Limits on the prosecutor offering specific evidence prior to the defendant "opening the door."

• California Evidence Code (CEC) $352$ Balancing: This rule requires the court to conduct a balancing test when there is a substantial likelihood that evidence is more prejudicial than probative. The analysis is similar to the analysis required for legal relevance under the FRE.

Policy-Based Exclusions

• Liability Insurance: Evidence regarding insurance against liability is not admissible to prove negligence or to show the ability of a party to pay a substantial judgment.

• Settlement Offers / Offers to Compromise: These are not admissible when offered to prove liability for a claim.

• Offers to Pay Medical Expenses: Evidence of offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. This applies even if there is no disputed claim.

  • FRE vs. CA Distinction: Under the FRE, related statements of fact made in conjunction with an offer to pay medical bills are admissible. In California, these related statements are restricted and not admissible.

• Subsequent Remedial Measures: Evidence of measures taken after an injury (e.g., repairs) is not admissible to prove liability.

  • FRE Limitation: These may be used to show ownership or control. However, they cannot be admitted to prove defective design in a strict products liability case.

• Withdrawal of Pleas: A withdrawn guilty plea is considered inadmissible under both the FRE and California law.

Witness Competence and Testimony

• General Witness Competence: The FRE and CEC presume that all witnesses are competent. In California, witnesses must specifically understand they have an affirmative duty to tell the truth.

• Personal Knowledge: Non-expert witnesses are required to have personal knowledge of the matter about which they testify. Witnesses must not be physically or mentally impaired to the point of being unable to perceive or communicate. They must also be old enough to understand the oath and the necessity of truthful testimony.

• Lay Witnesses: These are non-expert individuals who are competent and have first-hand knowledge. They must take an oath to tell the truth.

• Expert Witnesses: Expert testimony is appropriate only when scientific, technical, or other specialized knowledge will assist the trier of fact (judge or jury). The expert must believe the opinion they offer, and it must be supported by fact and based on reliable principles.

• California Expert Standards:

  • Kelly/Frye Standard: Opinions must be based on principles generally accepted by experts in the relevant field.

  • Daubert/Kumho Standard: Reliability is determined using several factors: publication, peer review, error rate, whether results are tested and have the ability to be retested, and a reasonable level of acceptance in the community.

• Consulting Expert Witnesses: These experts are retained by a party but are not expected to testify at trial. These experts have a higher standard for subpoenas and are discoverable only upon a showing of exceptional circumstances where it is impractical for the opposing party to obtain facts by other means.

• Expert Testimony Limits: Experts in criminal cases are prohibited from testifying to whether the accused possessed the required mens rea (mental state) for the crime.

• Witness Sequestration: If a party requests that observing witnesses be excluded from the courtroom while other witnesses testify, the judge must comply.

• Hypnosis in California: Witnesses who have been hypnotized to refresh their recollection are generally disqualified. An exception exists in criminal cases if the person was hypnotized by police using procedures designed to protect against the danger of suggestion.

Authentication and the Secondary Evidence Rule

• Authentication: A party must prove that an item is actually what the party purports it to be. This can be accomplished through witness testimony or by proving an unbroken chain of custody.

• Vocal Recognition: A voice may be identified by the opinion of any person who has heard the voice at any time, including on the same day or during trial proceedings.

• Signature Recognition: A jury is permitted to verify the authenticity of a signature by comparing it with an appropriate example.

• Best Evidence Rule (FRE): A party must provide the original document when testifying to the contents of a writing. Photocopies are acceptable substitutes. Oral testimony regarding the contents is only allowable after showing the original is unavailable for reasons other than misconduct.

• Secondary Evidence Rule (CA): This is California's version of the Best Evidence Rule. California specifically accepts duplicates and hand-written evidence of the contents of an original document.

Character Evidence and Prior Bad Acts

• General Rule: Character evidence is generally not admissible to show propensity (that a person acted in accordance with a trait). It may be admissible when character is at issue (e.g., in a defamation case) or for impeachment purposes.

• Defendant's Character: In criminal cases, the defendant has the right to provide evidence of their own good character. However, doing so "opens the door" for the prosecution to cross-examine based on that character.

• Victim's Character: A defendant may offer evidence of the victim's character to prove the defendant's innocence. The prosecution may counter by showing the victim's good character or the defendant's bad character for the same trait.

  • California Restriction: In CA, this rule applies specifically to violent traits.

• Methods of Proof:

  • FRE: Character may be proven by opinion or reputation testimony. During cross-examination, specific acts may be addressed.

  • CA (Defendant): Defendant's character can only be proven by opinion or reputation.

  • CA (Victim): Victim's character may be proven by opinion, reputation, or specific acts.

• Rule $404(b)$ (Prior Bad Acts): Evidence of prior crimes, wrongs, or acts is inadmissible to show propensity. However, it may be used for other purposes, often remembered by the mnemonic MOPPIKIAL or Mopey Cow:

  • Motive

  • Opportunity

  • Preparation

  • Plan

  • Intent

  • Knowledge

  • Identity

  • Absence of mistake

  • Lack of accident

Impeachment of Witnesses

• Purpose: Impeachment is used to demonstrate a witness's lack of truthfulness and credibility while they are on the stand.

• Prior Convictions:

  • Convictions involving dishonesty (felony or misdemeanor) are always admissible.

  • General felonies not involving dishonesty have a $10$-year limit from the date of conviction or release from confinement (whichever is later). They require a probative value/prejudicial effect determination and proper notice.

  • CA Impeachment: Requires CEC $352$ balancing for crimes of "moral turpitude." Misdemeanors are admissible under Proposition $8$.

• Prior Inconsistent Statements: Admissible to impeach. Extrinsic evidence is allowed only if the issue is material and a foundation is laid.

  • CA Rule: A prior inconsistent statement is admissible as non-hearsay for impeachment regardless of whether it was made under oath.

• Prior Consistent Statements: Admissible substantively if offered only to rebut a recent charge of fabrication or improper motive. There is no requirement that the statement was made under oath.

Hearsay and Exceptions

• Hearsay Definition: An out-of-court statement offered to prove the truth of the matter asserted.

• Reliability Rationale: Hearsay is generally excluded because it can be unreliable due to memory loss, bias, or manipulation. Exceptions exist where circumstances suggest reliability (e.g., excited utterances lack time for manipulation; ancient documents were created before litigation was anticipated).

• Multiple Hearsay: Also known as "hearsay within hearsay." Each layer of the statement must fall under an established exception to be admissible.

• Non-Hearsay: Statements not offered for the truth of the matter, including:

  • Effect on the listener.

  • Prior inconsistent statements.

  • Declarant's state of mind (used to show belief, attitude, or knowledge).

• Opposing Party's Statement / Adoptive Admission:

  • FRE: A statement by a party-opponent is non-hearsay.

  • CA: Defined as hearsay but is admissible under an exception.

  • Adoptive Admission: Occurs if a defendant remains silent after a statement where a reasonable person would have denied it.

• Vicarious Admissions: Statements made by authorized representatives (like an agent or employee) regarding their principal/employer. These are non-hearsay.

• Declarant Unavailability: A declarant is unavailable if they refuse to testify based on privilege, cannot recall the memory, are sick or dead, or cannot be found.

  • CA Supplement: Includes if the declarant suffers total memory loss or refuses to testify out of fear.

• Specific Exceptions (Unavailability Required):

  • Statement Against Interest: A statement made that was against the declarant's penal, proprietary, or pecuniary interest when uttered, such that a reasonable person would only say it if it were true.

  • Former Testimony: Statement made during a trial or hearing, offered against a party who had a previous opportunity to cross-examine the witness.

  • Dying Declaration: Declarant must believe death is certain and impending, and the statement must relate to the cause/circumstances of death.

    • FRE: Only for homicide or civil cases.

    • CA: Allowed in any criminal or civil case; requires the declarant to be deceased.

• Specific Exceptions (Availability Immaterial):

  • Excited Utterance / CA-Spontaneous Statement: Relating to a startling event, made under the stress of excitement.

  • Present Sense Impression / CA-Contemporaneous Statement: Explaining an event while perceiving it. In CA, the declarant must have actually witnessed the event (Example: A $911$ call reporting a shooting in progress).

  • Past Recollection Recorded: A writing made while a matter was fresh in memory which the witness can no longer fully recall. The witness may not read it aloud into the record but the record is admissible.

  • Present Recollection Refreshed: A witness uses an item to refresh memory. They cannot read directly from the item. The opposing party has a right to inspect the item.

Records and Documents

• Business Records: Made at or near the time of event by someone with knowledge, kept in the course of regular business activity.

  • CA Restrictions: Opinions or diagnoses are not included. Police records are not admitted as business records (they are hearsay), though they may be "official records." The party introducing the record bears the burden of proof for trustworthiness.

• Public Records: Records setting forth office activities, matters observed under a legal duty to report, or factual findings of a legal investigation. Police reports are excluded in this context as hearsay.

• Ancient Documents:

  • FRE: Document is over $20$ years old, regular on its face, and found in a place of natural custody.

  • CA: Document must be $30$ years old or older.

• Learned Treatises: Reliable treatises may be read into evidence during expert testimony. The jury is not permitted to take the physical text into the jury room to avoid confusion or misreading technical content.

Constitutional and Procedural Considerations

• Confrontation Clause: Found in the $6^{th}$ Amendment; prohibits the use of "testimonial" hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.

• Judicial Notice: Courts may take notice of undisputed facts that are generally known in the jurisdiction or can be accurately determined from sources whose accuracy cannot be questioned.

  • Civil Cases: Jury must accept facts as conclusive.

  • Criminal Cases (FRE): Jury may or may not accept facts.

  • California: Both civil and criminal juries must accept the facts.

• Cross-Examination: Courts have the discretion to allow inquiries into matters not addressed during direct examination.

Questions & Discussion

• Question (Police Sketches): What is the status of police sketches?

  • Answer: A police sketch is considered an out-of-court statement of an unavailable witness and is inadmissible as hearsay if the teller (the person describing the suspect to the artist) is unavailable to testify.

• Question (Prior Identification): Are prior statements of identification hearsay?

  • Answer: Statements of a declarant's prior identifications are considered non-hearsay; however, the declarant must be present in court for testimony and cross-examination.