Graham Evidence Spring2013 2

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EVIDENCE
GRAHAM
SPRING 2013

1. RELEVANCE GENERALLY

What is RELEVANT EVIDENCE?
o FEDERAL RULE: 401 (Bare Relevance Standard) - Relevant evidence requires both materiality and
probativeness; its a low standard:
Materiality:
Requires the evidence be directed toward a matter at issue;
(Usually determined by looking the substantive law of the jurisdiction--found often in
the pleadings--rather than the evidence rules);
EXAMPLE: D is on trial for aiding/abetting manslaughter of her boyfriend, who used
to brag to D about his violent past. D gave her daughter the weapon used in the
homicide. At trial, D testified that she believed she and her daughter were in danger
of bodily harm or death. Her belief/state of mind was essential to the issue of Ds
credibility she mustve believed in the stories her boyfriend told her. Evidence that
the dead boyfriend really did commit a violent crime in the past, corroborating one of
the stories told to D, should have been admitted, because it was material to Ds
credibility and showing her state of mind at the time. U.S. v. James.
Probativeness:
Requires the evidence tend to show that a particular matter more likely than if the
evidence hadnt been offered at all.
Lenient test for probativeness; doesnt need to prove anything conclusively.
EXAMPLE: D is charged with murder and claimed he was in bed at the time of the
crime. D underwent a polygraph quiz about the night of the crime, but the trial court
excluded testimony about the quiz itself. The polygraph examiner was called as a
witness, testifying that D said firmly and unhesitatingly, Go ahead . . . hook me up,
but nothing of the quiz itself. The testimony was probative, tending to show Ds
innocence. An innocent D likely wouldnt firmly or unhesitatingly agree to a
polygraph with high rate of accuracy. U.S. v. Scheffer.
Therefore, evidence is irrelevant if:
It isnt provable in the case (if its immaterial), or
It doesnt tend to show matter is more or less likely (if its not probative).
o CALIFORNIA RULE: 210 - No substantial difference.
o 3-STEP ANALYSIS:
1) Whats the issue for which the evidence is being offered?
2) Is the issue pertinent to the case?
3) Is the evidence probative to that issue?

Generally, what kind of evidence is ADMISSIBLE?
o FEDERAL RULE: 402 - only relevant evidence is admissible unless one of the following prohibits it:
The U.S. Constitution;
A federal statute;
A provision in the FRE; or
SCOTUS.
Otherwise, may not admit irrelevant evidence.
o CALIFORNIA RULES:
350 - No substantial difference
351 - Seems broader; Excludes relevant evidence when provided by statute; the CEC doesnt
specify any statutes in particular
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Proposition 8 (1982) - In criminal cases, if evidence is relevant, it should be admitted; this
makes relevance rules in California criminal cases coextensive with the Federal Rules.
o EXAMPLE: (ACN) Evidence of witness bias usually can be admitted; to the jury, this makes the facts
about which the witness is testifying less likely than if the jury didnt have the testimony at all. Also, the
FRE doesnt specifically demand an exclusion of evidence of witness bias.
o COUNTER-EXAMPLE: A plaintiff in a personal injury case wants to introduce evidence that after the
accident at issue, the defendant fixed whatever condition led to that accident. Even though its relevant, a
provision in the FRE prohibits this kind of evidence.

CONDITIONAL RELEVANCE: Relevance of an item of evidence often depends on whether a fact exists.
o FEDERAL RULE: 104(b) (Conditional Relevance Standard) - If relevance of evidence depends on
whether a fact is true, sufficient proof that the fact is true must be introduced, although a court could
admit the evidence on the condition that the fact be proven later. If a reasonable juror could find that
preliminary fact true evidence admitted, often with a jury instruction.
o CALIFORNIA RULE: 403 No substantive difference. The CEC provides some examples of facts
that trigger conditional relevance analysis. The difference is mainly that the CEC gives greater guidance
to the courts.
o RATIONALE: Even though the judge makes the preliminary decisions about conditional relevance, the
decisions are also appropriate fact questions for juries. The rule helps maintain the jurys role as fact-
finder.
o EXAMPLE: D is accused of killing his wife. Prosecutor wants to show that Ds motive was to prevent
his wife from telling her son that D was not his father. Prosecutor must first show that D knew his wifes
plan to tell her son, before he can submit evidence that D was not the boys father. People v. Fitzhugh.
o PRACTICE POINTS:
Every chain of inferences has potential missing links to admissibility of evidence; any sufficient
inference of the missing link could make the evidence admissible.
If the condition/link is less apparent (or the lawyer is less resourceful) Judge will test the
evidence against the bare relevance standard (FRE 401).
Lawyers dont make many 104(b) objections; the standard isnt much higher than bare
relevance.

2. SPECIAL EXCLUSIONARY RULES

SUBSEQUENT REMEDIES
o FEDERAL RULE: 407 In an action concerning a particular injury/harm, evidence that D took
measures to fix the condition after the injury/harm at issue is:
Not admissible to show negligence, culpable conduct, product defect, or need for warning.
Possibly admissible to impeach, or to prove ownership or control, or to disprove a Ds claim
that there was no feasible safety precaution, if ownership, control, or feasibility are disputed.
Therefore, if evidence isnt being offered to impeach, and if ownership, control, or feasibility
arent disputed, the evidence isnt admissible.
(Most courts will allow evidence of third party repairs.)
o CALIFORNIA RULE: 1151 CEC doesnt apply to strict liability cases, but FRE does. Under CEC,
a subsequent product redesign is admissible evidence in a product liability case.
o RATIONALE: Even though inference of negligence is possible to show that an accident or injury
caused the need for a subsequent remedy, it is often weak evidence of negligence. Also, the exclusionary
rule encourages people to make voluntary remedial changes, and a rule shouldnt amount to windfall to a
potential P.
o EXAMPLE: Decedents wife (P) brings a product liability suit against a manufacturer (D) of the
woodchipper that caused her husbands fatal injuries. She wants to introduce evidence that after the
accident, D lengthened the infeed of the woodchipper to make similar accidents less likely. D objects
per 407; judge sustains, because P is offereing the evidence to show negligence. In CA, the judge would
overrule, because it is offered to prove a strict liability/defective design. Wood v. Moorbark Industries.


SETTLEMENT & COMPROMISE OFFERS
o FEDERAL RULE: 408 - Evidence of a settlement or offer to compromise:
Is not admissible when its directed toward the validity of the disputed claim or to impeach a
statement made during negotiations;
Disputed Claims: The rule only covers disputed claims. If a claim isnt disputed, like
in a case where a debtor isnt disputing how much he owes his creditor and the
settlement is only to get the creditor to accept a lesser sum, then 408 doesnt apply.
Impeachment: The rule only applies to impeachment to show a prior inconsistent
statement or a contradiction. It does not apply when trying to prove the witness has a
bias or motive to lie (see below.)
May be admissible for any other purpose, like showing the witnesss bias, showing there wasnt
undue to delay, or to show an attempt to obstruct a criminal investigation.
A claim of some sort must be made first, before 408 could be triggered. Offers made before a claim
exists dont fall under 408s protection.
o CALIFORNIA RULE: 1152 No substantial difference, though CEC applies also to discussions
during mediation.
o RATIONALE: Offers to compromise are usually made from humane impulses, and the exclusionary
rule encourages compromise. Admitting this evidence would discourage this kind of assistance.
o EXAMPLE: C causes a car accident, injuring A and B, who are now suing C. C reaches a negotiation
with A whereby A also agrees to testify against B on Cs behalf. B can offer this as evidence. Its not
subject to the rule because its offered to show witness bias.

MEDICAL EXPENSES
o FEDERAL RULE: 409 Evidence of an offer to pay or payment of medical costs is inadmissible to
show liability. The rule doesnt protect statements surrounding offers to pay medical expenses.
o CALIFORNIA RULE: 1152 - CEC protects statements surrounding offers to pay medical expenses.
o RATIONALE: 409 encourages offers to assist, which may in turn help avoid litigation.
o EXAMPLE: After an accident, the responsible party (D) tells P, Im sorry I ran the red light, let me
take care of your treatment. Under the FRE, the offer to pay is inadmissible, but the statement that he
ran the red light is admissible. Under the CEC, both the offer and the statement about the red light are
inadmissible.

PLEAS IN CRIMINAL CASES
o FEDERAL RULE: 410 In civil and criminal cases, the following arent admissible against a defendant
who was part of a plea discussion:
Withdrawn guilty pleas,
No contest pleas,
Statements made during plea proceedings (unless the evidence is offered to complete a partial
account of the discussions or in perjury cases, if D was under oath, on the record, with attorney
present.)
Statements made with attorney for the prosecuting authority if the discussion resulted in a guilty
or withdrawn guilty plea. (unless the evidence is offered to complete a partial account of the
discussions or in perjury cases, if D was under oath, on the record, with attorney present.)
Ds statements during discussions also may not be used to impeach.
410 operates differently from the other exclusionary rules, which exclude all evidence of specified things
in specified situations, while admitting the evidence in any other issue. But evidence under 410 is always
barred unless in certain situations where specifically permitted. 410 is narrow, the others are broader.
o CALIFORNIA RULE: 1153 No substantial difference.
o RATIONALE: Ds may plead guilty, even if they are not guilty to avoid risk of loss and a greater penalty.
The rule also promotes plea-bargaining.

LIABILITY INSURANCE
o FEDERAL RULE: 411 Evidence that a party has or does not have insurance is
Not admissible to show negligence, wrongful conduct, or ability to pay.
Admissible for any other purpose, like showing witness bias or agency, ownership, or control

o RATIONALE: Evidence lacks probative value because its unlikely that the uninsured are less careful
than the insured. Juries may inappropriately use insurance to consider plaintiffs recoveries. Rule also
encourages insurance and avoids windfall to the insureds opponent.
o EXAMPLE: P is a guest at Ds home. While there, P falls down a darkened flight of stairs. At the
hospital, recovering from her injuries, W, the adjustor for Ds insurer, obtains a tape recorded statement
from P about her recollection of the incident. D used the tape at trial to impeach P. P wants the court
to admit this as evidence that W works for Ds insurance company in order to show witness bias.
Evidence is admissible because it shows agency and witness bias.

EXPRESSIONS OF SYMPATHY OR BENEVOLENCE
o FEDERAL RULE: NONE
o CALIFORNIA RULE: 1160 Verbal, written, or gestural expressions of sympathy or general
benevolence are inadmissible in civil cases to show liability, but additional admissions/statements of fault,
may be admissible.

3. DISCRETIONARY EXCLUSION OF PROBATIVE EVIDENCE
FOR RISK OF UNFAIR PREJUDICE

PROBATIVENESS vs. RISK OF UNFAIR PREJUDICE
o FEDERAL RULE: 403 Even if evidence is relevant, if its probative value is substantially outweighed
by the risk of
Unfair prejudice,
Because relevant evidence is inherently prejudicial, the prejudice must be unfair, such
as unnecessarily inflammatory photographs. State v. Bocharski.
Confusing the issues,
Misleading the jury,
Undue delay,
Times wasting, or
Needlessly presenting cumulative evidence,
Then the trial judge has the discretion to exclude the evidence, and its only reviewable on appeal for abuse
of discretion.
Substantially outweighed means that a judge has the discretion to exclude evidence if the
danger that one the above-listed circumstances would occur is substantially greater than its
probative value. A judge has no discretion to exclude if the probative value and danger of any
of these listed evils are equal in weight, or if the evils outweigh probative value only slightly.
o EXAMPLE: D is in a criminal trial for possessing an unregistered machine gun, allegedly having altered
it so it would rapid-fire. In the govts experts test, the gun rapid-fired. In the Ds experts test, it didnt.
D tried to argue that in the govts test the gun probably misfired or was internally dirty, worn or
defective, causing a malfunction. Govt offered a photograph of the gun, trying to show that it wasnt
dirty, worn, or defective. The court excluded the evidence, because it didnt who the guns inside, but it
did show other guns and assault weapons alongside it. The evidence was excluded for unfair prejudice.
United States v. Hitt.

CHAPTER 3: CHARACTER EVIDENCE


FRE 413* Similar offenses in sexual assault prosecution
FRE 414* Similar offenses in child molestation prosecution
FRE 415* Similar offenses in sexual assault/child molestation in civil actions
FRE 404(a)(2)(A) Character of criminal defendant, offered by defendant
FRE 404(a)(2)(B) Character of victim, offered by criminal defendant
FRE 404(a)(2)(C) Character of homicide victims peacefulness, offered by prosecution to rebut
defendants evidence that victim was the first aggressor
FRE 404(a)(3) Character of a witness
*Not on exam

1. CHARACTER-PROPENSITY RULE

EVIDENCE OF CHARACTER PROPENSITY IN GENERAL
o FEDERAL RULE: 404(a)(1) In both criminal and civil cases, another act is generally not
admissible as evidence, if being offered to show that he/she had a particular character trait and acted
in accordance with that trait at a particular time. Evidence of another act offered for a purpose other
than showing character propensity is permissible. Note that a persons habits or routine practices do
not fall under character or character traits purposes of this rule.
(Note that FRE 404(b) is effectively largely superfluous and merely clarifies/offers a non-exhaustive
list of exceptions to 404(a)(1).)
o CALIFORNIA RULES:
1101 No substantive difference. Note that even though Proposition 8 appears to repeal
1101 and 1104 when theyre applied in criminal cases, the CA legislature amended 1101
subsequently, and therefore re-enacted it. Also, in sex offenses CEC permits character
propensity evidence to prove whether D reasonably and in good faith believed the victim
consented. (FRE 404 doesnt address this, but FRE 412 does, and mostly limits the
evidence to past sexual conduct with the particular D.) Also, FRE contains a notice
requirement for other acts evidence, but CEC doesnt.
1104 Evidence with regard to care or skill is inadmissible to show quality of a persons
conduct at a particular time. Note that this doesnt add anything substantive to 1101, so
even if 1104 was repealed by Proposition 8, it affects nothing since 1101 is still technically
in force.
o RATIONALE: Even though this evidence can be relevant, relevance isnt the issue. The problem
is with its risk of unfair prejudice for two reasons: (1) Juries may give excessive weight to character
evidence and allow it to bear too much on the current matter, and/or (2) allow character to justify a
condemnation irrespective of guilt/liability on the current matter.
o THE PROPENSITY BOX/DIAGRAMMING THE PROPENSITY BAN: Evidence cannot
show a persons character or character trait in order to prove that the person acted in accordance
with that character trait at a particular time (the propensity box).

Evidence can be admissible if its not offered to show that the person acted in accordance to a
particular trait, thereby going around the propensity box. See FRE 404(b) below.
o EXAMPLE: D is on trial for premeditated murder. The victim while out in public allegedly
insulted Ds wife. Wife returned to her husband and they both went home. When wife recounted
Is evidence of another
act, opinion,
reputation?
Is it offered to prove
character or a
character trait?
Is it offered to prove
the person acted
according to that
character trait?
GENERALLY
inadmissible
FRE 404(a)
CEC 1101, 1104.
See following 7
exceptions:
Evidence
Infers a particuar
character trait
PROPENSITY BOX
Infers the person
acted in
accordance with
that trait
Inadmissible

the story to D, he returned to the victim while armed. There was a confrontation with words and
blows before the fatal shot. Ds statements are contradictory: To the police, he said he armed
himself at the apartment; at trial, he said he had the pistol in his pocket the whole night. Govt tried
to admit into evidence the stockpile of dangerous weapons found at Ds home to prove he had a
general criminal propensity, and therefore committed the murder. This was inadmissible because it
has low relevance for its low probative value, which is substantially outweighed by risk of unfairly
prejudicing the jury. However, the govt could have used it for another purpose (going around the
propensity box), for example, as evidence of preparation or design to show that D bought these
weapons in expectation of a particular kind of confrontation, or as evidence that tended to show Ds
identity. People v. Zackowitz.

2. GETTING AROUND THE PROPENSITY BAN

GETTING AROUND THE CHARACTER-PROPENSITY BAN
o FEDERAL RULE: 404(b) This rule merely offers illustrations different discretionary exceptions
to the propensity ban in 404(a), including offering evidence of a past act to show:
Motive,
Opportunity,
Intent,
Preparation/plan,
Knowledge,
Identity, or
Absence of mistake/lack of accident.
o CALIFORNIA RULE: 1101(b) No substantive difference, but also allows for defense in sex
offenses to offer other act evidence to show he/she didnt reasonably and in good faith believe the
victim consented. FRE also contains a notice requirement, but CEC doesnt.
o PROOF OF IDENTITY: Evidence of another act may be admissible if it matches the present act
in signature ways such that it is probative of the Ds identity. There must exists a high degree of
similarity.
MODUS OPERANDI: One method of proving guilt by identity is by showing that the
past act matches Ds M.O. The similarities between the two acts must be so idiosyncratic
and the inference that no one else could have committed the acts overcomes the jurys
temptation to make the impermissible propensity inference.
EXAMPLE: A bomb exploded in Roslindale at a police officers home, killing
one and injuring another. Officers investigated an object in D2s fathers
driveway. D2s father reported that he heard a loud noise coming under his car,
and that he found the object on the driveway after he backed out of his driveway.
Investigation revealed a similar bombing a few years before in Quincy, planned by
D2 as a means of intimidation against someone who had a dispute with one of his
(D2s) friends. D2 used a third party to obtain parts for the bomb at a Radio
Shack, and used particular parts and affixed the bomb to the bottom of a car.
The govt contended that D2 built the Roslindale bomb as well for his friend, D1,
in retaliation against someone else. D2 used D1 to obtain similar parts for the
bomb from the same Radio Shack, and the bomb was constructed mostly the
same way. The evidence is admissible because they are sufficiently idiosyncratic
as to avoid the inference of character propensity. US. v. Trenkler.
REVERSE 404(b): Evidence of other crimes may be admissible to negative the accuseds
guilt and exonerate the D, by showing that D is a victim of mistaken identification. U.S. v.
Stevens.
EXAMPLE: Jane and Tony were white Air Force officers walking back to their
dormitories. While waiting for the bus, D, a black male, pointed his gun at Tony
and demanded his wallet, and then sexually assaulted Jane. Jane and Tony
reported the incident and twice identified D out of a lineup, once by photo
lineup, and then in-person. Days before, Mitchell, a black officer, was also

robbed at gunpoint by another black man. Though the robberies were similar in
time, space, and manner, Mitchell contends D was misidentified. This evidence
is admissible because it is relevant/probative in showing D was misidentified.
There is also low risk of unfair prejudice to D under 403 because it was D who
was offering the evidence. U.S. v. Stevens.
o EXAMPLE of PROOF OF KNOWLEDGE: P is a railroad brakeman for the D railroad, suing for
injuries he alleges were caused by Ds negligence of another drunken employee, the engineer
Harrison. P offered evidence that Hs drunken condition was the cause of the accident at the time,
and further evidence that H had a general reputation for excessive drinking. Evidence included the
testimony from another of Ds employees who said H was intoxicated at the time and cautioned
others to watch H to prevent accidents. This evidence is admissible if the P is offering it to prove
that D knew that H was intoxicated at the time, provided the judge gives a limiting instruction to the
jury not to consider Hs general bad reputation and that he acted in accordance with that reputation.
Baltimore R.R. Co. v. Henthorne.
o EXAMPLE of PROOF OF MOTIVE: D is on trial for murder of two officers. The victims were
following D in his van when it came to stop at a fork in the road. The D and other occupants of the
van began to fire on the officers, killing them. Govt seeks to offer evidence that D was charged with
attempted murder, pleaded not guilty, and was released on bond, though he failed to appear for trial
and his bond was forfeited. A warrant was issued for his arrest. This may be admitted to show that
D had a motive to evade the police at the time of the events constituting the present charge,
provided the judge instruct the jury not to consider the attempted murder charge, and instead focus
on the revocation of bond as a possible motive. US. v. Peltier I.
o EXAMPLE of NARRATIVE INTEGRITY (RES GESTAE): Authorities found a gun with
obliterated serial number in Ds backpack. D claimed the fun wasnt his. In order to prove his
possession, govt wanted to offer evidence of Ds ex-fiance, Patricia Stuart, who would testify that D
played Russian Roulette with her years earlier. During the limine hearing, the judge instructed PS
not to characterize the event as Russian Roulette. This would risk unfair prejudice. However, the
details were admissible, because the were integral to the prosecutions narrative. U.S. v. Hite.
o EXAMPLE of ABSENCE OF MISTAKE/ACCIDENT: D charged with murdering his wife with a
shotgun. He testified that he was cleaning the gun and it accidentally discharged. Govt seeks to
introduce evidence that three years earlier, his first wife was killed with a shotgun, and D then
claimed that he was cleaning the gun and it accidentally discharged. This is admissible because
rather than going into Ds propensity, it is offered to show that is very unlikely that the second
homicide was a pure accident.
o EXAMPLE of the DOCTRINE OF CHANCES: D charged with killing his third wife in her bath.
Wife 3 inherited a large sum of money from her father. Govt sought to introduce evidence that his
past two wives were died in the bath, and were also heirs to substantial fortunes. This evidence is
admissible because rather than going to propensity, the unusualness of occurrence and number of
times it repeated increased the improbability of the third killing, leading to the inference of absence
of mistake, a design, or motive or plan.

3. THE HUDDLESTON STANDARD:
CONDITIONAL RELEVANCE OF PAST ACT EVIDENCE FRE 104(b)

Must evidence of OTHER ACTS be PROVEN TRUE to be admissible under 404(b)?
o RULE: HUDDLESTON STANDARD No. To determine whether govt has introduced
sufficient evidence to meet the conditional relevance rule (FRE 104(b)), the court examines all
evidence (cumulatively, not in isolation), and decides whether a jury could reasonably find the
conditional fact. The court does not need to weigh credibility or prove the conditional fact.
o CONTRAST WITH 104(a):
104(a) addresses the courts duty to determine Ws qualifications, privilege, or admissibility. The
court acts as a gatekeeper.
104(b) addresses the courts weighing of a reasonable jurys finding of conditional relevance.

4. PROOF OF CHARACTER OF VICTIMS AND DEFENDANTS

ALLOWABLE methods of proving GENERAL character: Opinion testimony (OT), Reputation Testimony
(RT), Specific Instances of Conduct (SIC)
o FEDERAL RULES:
405(a) RT & OT: Only on direct examination, for evidence of a persons character to be
admissible, the testimony must be in the form of an opinion (OT) or relate to the persons
general reputation (RT), as long as the testimony doesnt go into whether the person acted
in accordance with that character.
RT and OT must relate to the persons through the eyes of his general community.
Relevant factors may include how many people are in that community, timing, and how
well the person was known in the community and to the W.
Testimony about the persons SIC is only available on cross-examination (unless the
person, on direct examination, brings up the character issue himself in a criminal case.).
405(b) SIC: Relevant SIC may be used to prove existence of a persons
character/character trait when that character/trait is an essential element to the charge,
claim, defense.
o CALIFORNIA RULE: 1100 Allows OT, RT, and SIC testimony on direct examination.
o FORM OF INQUIRY: Lawyer must frame the question to determine the general talk of people
about the defendant.
o RATIONALE: These rules get around the propensity box, because they only focus on the
existence of a character trait, not whether a person acted in accordance with that trait.
o EXAMPLE:
Q: [On direct examination] How long have you known the defendant?
A: 30 years.
Q: Have you had the opportunity to discuss his reputation for honesty and truthfulness with others?
A: Yes.
Q: What is his reputation?
A: Very good.
This is acceptable OT/RT, because the question is framed to determine defendants general
reputation among the community. Michelson v. United States.
o COUNTEREXAMPLE:
Q: [On direct examination] How long have you known the defendant?
A: 30 years.
Q: Did you know he was arrested 5 years ago for receiving stolen goods?
This is unacceptable under FRE, but acceptable under CEC (assuming CEC 352 is met.) FRE
doesnt allow SIC inquiry on direct, but CEC does.
o EXAMPLE:
Q: [On direct examination] What is the defendants general reputation for honesty and
truthfulness?
A: Very good.
Q: [Opposing counsel on cross-examination] Did you know he was arrested 5 years ago for
receiving stolen goods?
This is acceptable under both FRE and CEC (assuming 404/352 are met) because SIC inquiry is
allowed on cross-examination.

CRIMINAL CASES: When character of a DEFENDANT or VICTIM is ADMISSIBLE
o FEDERAL RULES:
404(a)(2)(A) Character of the Defendant: Only a criminal D can offer evidence of his
own character, but D must actually testify or present testimony about that character trait in
order for the prosecutor to be allowed to attack it.
IMPORTANT: (ACN) In civil cases, character evidence is never admissible to prove
someone acted in conformity with that character, regardless of whether the issue is criminal
in nature.
404(a)(2)(B) Character of the Victim: Arises mostly in homicide cases where D asserts
self-defense. D can offer evidence of Vs character. Prosecutor can then offer evidence to

rebut or to show that D had the same trait by OT or RT (not SIC), even if D hasnt even
put his own character at issue first.
404(a)(2)(C) Character of the Victim, contd: In a homicide case, if D offers evidence
(character or non-character) that V was the first aggressor, prosecution can offer evidence
of Vs general peaceful character.
o CALIFORNIA RULES: Main difference between CEC and FRE is that CEC allows evidence of
Vs SIC on cross-examination of D:
1102 Character of the Defendant: No substantive difference regarding Ds ability to offer
evidence of his own character.
But on cross-examination, where D attacks Vs character, CA state prosecutor may offer
evidence of Ds violent character by OT, RT, or SIC. FRE doesnt allow evidence of SIC
of D on cross-examination.
1103 Character of the Victim: No substantive difference regarding Ds ability to offer
character evidence of the victim.
But on cross examination in a homicide case:
CA state prosecutor can only offer evidence of Vs peaceful character only if D
first offers evidence of Vs violent character propensity, i.e. Evidence of Vs
peacefulness only admissible if D first offers evidence of Vs violent character.
(Under the FRE, D can offer either character or non-character evidence that FRE
was the first aggressor.)
CA state prosecutor can offer evidence of SIC (in addition to OT and RT) when
D attacks that same character trait.
o EXAMPLE: D is on trial for aiding/abetting manslaughter of her boyfriend, V, who used to brag to
D about his violent past. At trial, D asserts self-defense and testifies that she believed she was in
danger of bodily harm or death. D wants to testify about specific instances of Vs violent acts. In
federal court, evidence that V really did commit these specific acts in the past, may only be in the
form of general OT or RT. In CA state court, they probably would have been admissible. U.S. v.
James.

5. EVIDENCE OF HABIT

EVIDENCE OF HABIT OR ROUTINE PRACTICE
o FEDERAL RULE: 406 Evidence of a persons idiosyncratic and routine practices (habits) are
admissible to show that the person acted in accordance with those practices on a given occasion. It
doesnt matter whether this is corroborated by an eyewitness. The key feature of these practices is
that they must be predictive of conduct.
o RATIONALE: This rule gets around the propensity box because a habit is strongly predictive of
the actors conduct, and does not force inferences into his character and whether he acted in
accordance with that character. Habit is also more predictive than character propensity, and
therefore more probative of probative conduct, i.e. more predictive = more probative.
o EXAMPLE: P sues D chemical company. P is a mechanic who has serviced hundreds of cars air
conditioning units. While replacing one such unit, P placed a can of refrigerant made by D into
warm water. The can exploded causing injuries to P. At trial, D wants to offer evidence that P was
negligent at the time, by showing that P had a common practice of using an immersion coil to heat
the water into which the can was placed. P knew excessive heating could have this effect, and the
warnings on the can specified permissible safe temperatures for handling. Because this is proof of
deliberate, repetitive practice tending to support an inference of persistence, and then the inference
of negligence, this testimony is admissible. Halloran v. Virginia Chem. Inc.


CHAPTER 4: IMPEACHMENT & CHARACTER
FOR CREDIBILITY

1. MODES OF IMPEACHMENT GENERALLY

Generally:
o Impeachment is not substantive evidence. Its used instead to cast doubt on a witnesss accuracy or
trustworthiness.
o EXAM TIP: Dont fall for the trap of involving a non-testifying defendant. To be admissible for
impeachment, evidence must relate to a testifying witness.

Mistake Mode of Impeachment
o A lawyer may impeach W by showing that she is mistaken, asking questions to cast doubt on her
powers of:
Perception,
Memory, or
Narrative accuracy.
o RATIONALE: FRE and CEC character evidence rules have no constraint in calling Ws mistaken
(as long as the impeachment passes 401 and 403), because this doesnt implicate Ws character.
(NOTE: Some hearsay rules may be implicated.)
o EXAMPLE: To cast doubt on W, lawyer may ask about her poor eyesight, failing memory, poor
memory, age, passage of time, suggest W misspoke, etc.

Character vs. Non-character Modes of Impeachment
o Non-character Impeachment: A lawyer may suggest a W is deceiving the factfinder by show that W
is lying now, rather than suggesting that W has a general tendency (character propensity) to lie.
Three forms:
Contradict with Conflicting Evidence:
Contradict with Past Inconsistent Statement:
Evidence of Bias:
o Character Impeachment: Even though FRE 404(a)(1) seems to bar this type of impeachment,
404(a)(3) permits it as provided in FRE 607 (either party may attack Ws credibility), 608 (Ws
propensity for untruthfulness), and 609 (Ws past convictions for sufficiently serious or deceptive
crimes). (See next sections)

2. IMPEACHMENT BY OT, RT, & SIC
CROSS-EXAMINATION ABOUT PAST LIES

Who may impeach?
o FEDERAL RULE: 607 Either party may impeach a witness, even the party that called the
witness.
o CALIFORNIA RULE: 785 No substantive difference.
o RATIONALE: A party should not be at the mercy of the witness and the adversary. (ACN)

What factors may a jury consider in deciding whether a witness is credible?
o FEDERAL RULE: No counterpart to CEC.
o CALIFORNIA RULE: 780 CEC lists factors that a court or jury can consider when determining
whether a witness is credible:
Demeanor and manner while testifying,
Character of testimony,
His capacity to remember/communicate his testimony.
Opportunity to perceive the matter about which hes testifying,
His character for honesty/veracity,
Existence of bias, interest, or other motive,

His previous consistent/inconsistent statements,
Factual accuracy of his statements,
His attitude about the case or about testifying, or
Admissions of untruthfulness.

Impeaching a witness with RT or OT to show whether she is TRUTHFUL
o FEDERAL RULE: 608(a) Both civil and criminal cases. Allows limited use of character evidence
for impeachment of a witness on direct examination, i.e. to impeach a witness, OT or RT must
relate to the witnesss credibility and nothing else.
Must pertain to a testifying witness, not a defendant who hasnt yet testified.
Evidence of the witnesss truthful character is only admissible after witnesss character has been
attacked, i.e. lawyer may only rehabilitate a witness with RT or OT after the opposing counsel has
tried to impeach the witness.
o CALIFORNIA RULES:
786 No substantial difference
790 No substantial difference
o RATIONALE: Limiting the inquiry about the witnesss character to truthfulness avoids inferences
about her character generally. It sharpens relevancy, reduces surprise, waste of time, and confusion.

Impeaching a witness with SIC to show whether she is TRUTHFUL
o FEDERAL RULE: 608(b)
On direct: Evidence of witnesss SIC is inadmissible on direct to attack or support
witnesss truthful character.
On cross: SIC is admissible on cross-examination but only at the courts discretion (subject
for 403) if SIC is probative of the truthful character of that witness or another witness who
the witness being cross-examination testified about.
Exceptions: This doesnt apply to impeaching a witness for bias or when SIC of the witness
was the subject of a prior criminal conviction (see FRE 609).
Extrinsic Evidence: Evidence of extrinsic evidence is not allowed, i.e. the lawyer is bound
by the witnesss answer to a question. If a lawyer asks a witness about a past lie in an
unrelated matter and witness denies it, the lawyer must accept the answer. Lawyer may not
call a second witness to prove the first witness told the lie in question.
Connection to FRE 405(a): 608(b) is more liberal than 405(a). 405(a) allows SIC evidence
on cross-examination of the character witness, but not of any other person, unlike 608(b).
o CALIFORNIA RULE: 787 Substantially the same as FRE in civil cases.
Different in criminal proceedings because of Prop. 8. Fewer constraints in CA than in the FRE. In
CA criminal trials:
Any OT, RT, and SIC relevant to the witnesss truthfulness may be introduced.
Evidence in support of witnesss truthfulness is admissible even if it hasnt yet been
attacked.
Extrinsic evidence of SIC is admissible.
o RATIONALE: Effective cross-examination requires inquiry into a witnesss credibility, but because
of the risk for abuse, inquiry is limited to the witnesss truthfulness and subject to FRE 403.
o EXAMPLE: D permitted to introduce evidence that the prosecutions principal W was a
psychopathic liar.

3. IMPEACHMENT WITH PAST CRIMINAL CONVICTIONS

Impeaching a witness by evidence of her PAST CRIMINAL CONVICTION
o FEDERAL RULE: 609 Allows a party to attack a witnesss truthfulness by evidence that she was
previously convicted of a crime. The witness must have actually been convicted.
Generally: Conviction of crimen falsi are admissible to impeach W.
Past misdemeanor: To impeach a witness with evidence of her prior misdemeanor
conviction, the misdemeanor must involve a dishonest act or false statement, e.g. fraud,
perjury, or forgery. Such evidence must be admitted, but the court has discretion if the

prior conviction is over 10 years old (see 609(b)).
Past felony: If the witness was previously convicted for a felony (crime punishable by 1+
years imprisonment or death):
Present civil or criminal case + Witness NOT a defendant = prior conviction
MUST be admitted as evidence of truthfulness, subject to 403 (and 609(b) if the
prior is over 10 years old).
Present criminal case + Witness IS a defendant + (probative value > prejudicial
effect against defendant witness) = prior conviction MUST be admitted as
evidence of truthfulness (but the court has discretion under 609(b) if the prior is
over 10 years old)

How old may the conviction be? : The court has no discretion to exclude evidence of a
witnesss prior convictions unless they are over 10 years old.
Then, the court can admit, subject to 403, but the party offering the evidence must give the
adversary written notice of its intent to use the evidence.
If the witness was convicted of a series of crimes, the date of the latest conviction is used.
Effect of pardon, annulment, rehabilitation: If the conviction was subject to a pardon,
annulment, or certificate of rehabilitation and the witness hasnt committed another felony
for over a year, then the prior conviction is inadmissible.
If the prior conviction was subject to reversal because the witness was found innocent, then
the prior conviction is inadmissible.
Juvenile adjudications: Only admissible in criminal cases where the witness is not the D in
the present case.
Pendency of an Appeal on the prior conviction: It doesnt matter whether the prior
conviction is currently being appealed, but the pendency of the appeal is also admissible.
o CALIFORNIA RULE/CONST.:
In CIVIL cases: CEC 788 In CA civil cases, only a witnesss past felony convictions are
admissible to impeach the witness. Prior misdemeanors are not admissible. 788 does not
apply to criminal cases, as it has been superseded by Prop. 8 in the criminal context.
In CRIMINAL cases: Prop. 8 A witnesss past felonies or misdemeanors may be
admitted to impeach the witness, subject to 352, but the prior conviction must be on a
crime that involves moral turpitude/readiness to do evil.
CEC has no time limit on the age of prior convictions of a witness, so long as they satisfy
352.
o RATIONALE: Generally, at least some crimes are relevant to the actors credibility. But the FRE
imposes safeguards to limit applicable prior convictions to those involving crimen falsi, those less
than 10 years old, and subjecting them to 403. Giving weight to demonstrated rehabilitation,
reversal of convictions, and excluding juvenile adjudications prevents abuse of prior conviction
evidence as a mode of impeachment. (ACN)
o EXAMPLE:

4. IMPEACHMENT WITH EXTRINSIC EVIDENCE

Common Law Principle
o Extrinsic evidence will not be admitted on a collateral matter, i.e., the party cross-examining the
character witness is bound by the witnesss answer. What constitutes extrinsic evidence and
collateral matter depends on the context of the case.

Extrinsic Evidence in Character Evidence (also see 405(a) and 608(b) above)
o Per FRE 405(a), a party may cross-examine a character witness whether he heard about relevant SIC
by the person who the witness is testifying about. However, the party is bound by the witnesss
answer, i.e., he cant present any extrinsic evidence about the SIC regardless of how the witness
answers.
o Per FRE 608(b), a party may cross-examine a witness about his SIC to determine his truthfulness,
but extrinsic evidence isnt admissible to prove SIC of the witness (with the exception of criminal

convictions under FRE 609.)

Extrinsic evidence in Contradicting Specific Testimony (Written OR Oral)
o FEDERAL RULE: 613 Limited to impeachment purposes, unless the prior statement was made
under oath in a prior legal proceeding, in which case it is admissible as nonhearsay.
If a party wants to impeach a witness with the witnesss prior inconsistent statement, the party doesnt
need to disclose the statement to the witness, but must disclose it to the adverse partys attorney if
that attorney requests it.
Extrinsic evidence of such statements is only admissible if the witness is given a chance to explain or
deny them and the adverse party has the chance to examine the witness about it, as justice
requires.
o CALIFORNIA RULES:
769 No requirement for a party to disclose to the adverse party or his counsel the
contents of the statement that will be used to impeach the witness.
770 Though seems similar to the FRE (extrinsic evidence of prior inconsistent statements
is only admissible if the witness is given the chance to deny or explain) Prop. 8 seems to
remove this limitation. (CA courts havent yet addressed the issue.)
791 Admissible as nonhearsay if only offered to impeach.
The statement is hearsay if offered to prove truthfulness, but a hearsay exception applies
even if not made under oath in a prior legal proceeding.
o RATIONALE: The disclosure requirement is used to prevent insinuations in the courtroom that
the witness made a certain statement, but the fact is to the contrary. (ACN)

CHAPTER 5: (OMITTED)

UNIT II: RELIABILITY

CHAPTER 6 - 7: HEARSAY

1. HEARSAY GENERALLY

Hearsay definitions: FRE 801/CEC 225, 125
o Statement - An assertion a person makes, intended by the person to communicate something. A
statement can be written, oral, or nonverbal.
o Declarant The person making the statement.

TEST: When is a statement HEARSAY?
o FEDERAL RULE: 801(c)
1) Is the party offering the statement as evidence offering it to prove the truth of matter related in the
statement by the declarant?
2) Did the declarant assert/communicate the statement intentionally and out of court?

EXAM TIP: Does it matter if declarant is telling the truth? If not = evidence is not hearsay.


What is an ASSERTION?
o Generally
A written, oral, or physical expression;
Communicates something to an audience;
Declarant must intend to communicate that thing to the audience, i.e. Nothing is an
assertion unless intended to be one. ACN.
o CONDUCT as assertion:
Sincerity of the declarant/actor is the most important testimonial capacity in this context.
Context matters. TEST: Ask Could this conduct be a lie?
EXAMPLE: Plaintiff is trying to prove that a vessel is seaworthy by showing that a
sea captain inspected the ship before setting sail with his family on board. The
captain hasnt asserted anything because by inspecting the ship and travelling on it
with his family, he didnt intend to communicate to anyone anything about its
seaworthiness.
COUNTEREXAMPLE: Chair of Atomic Energy Commission responds to
criticism of an atomic test by alerting reporters that he was taking his family to the
test site and then doing so. This is an assertion because it was meant to
communicate to an audience of reporters that the site was safe.

GENERAL RULE against HEARSAY, aka The Hearsay Rule:
o FEDERAL RULE: 802 If a statement is hearsay, it is inadmissible unless some other law (the
FRE, federal statute, SCOTUS) makes an exception.
o CALIFORNIA RULE: 1200 No substantial difference inadmissible except as provided by
law.)
o RATIONALE: Hearsay Rule ensures the jury only hears reliable evidence. A witnesss belief about
a matter depends on the soundness of all four of her testimonial capacities:
Perception,
Memory,
Narration,
Sincerity.
The jury tests the witness belief by 3 courtroom tools:
The oath, where the witness swears to tell the truth,
Demeanor, where the jury scrutinizes the witnesss face, mannerisms, and overall physical
response to judge her intellect, precision, and overall trustworthiness,
Cross-examination.
DIAGRAMMING A WITNESSS BELIEF:


DIAGRAMMING HEARSAY:

The truth of the witnesss testimony in court depends on the soundness of the out-of-court
declarants belief about the event. This is unreliable because the court/jury cant test the declarants
testimonial capacities, i.e. if the jury cant determine the truthfulness of the declarant, the court/jury
cant reliably test the truthfulness of the witness (who is essentially relaying what he heard the
declarant said she saw), because the witness isnt under oath, the jury cant scrutinize her
demeanor, or cross-examine her.
o EXAMPLE: If Declarant tells a person out of court, I saw X pull the trigger, and the person
testifies about it in court later on, his testimony, Declarant said, I saw X pull the trigger, is hearsay.
The truth of the witnesss testimony depends on the untestable belief of the declarant.

BASIC ACCEPTABLE NON-HEARSAY uses for out-of-court statements:
o What the following three categories have in common is: the person offering the statement isnt
relying on the belief of the declarant when the declarant made the out-of-court statement.

To show statements EFFECT ON THE LISTENER: Statement by the declarant which
witness uses to prove the impact on the listener.
EXAMPLE: Witness/defendant is on trial for assault and is asserting self-defense.
To prove his fear of the victim was reasonable, he testifies that Declarant said,
Watch out for [victim.] This is acceptable as non-hearsay, because it isnt
offered to prove the truth of what Declarant said, but used to show the effect on
the listener (witness/defendant.) The relevant inquiry is whether
witness/defendant reasonably believed Declarants statement, which doesnt
require the jury to test Declarants belief.

VERBAL ACTS / To show legal right/duty triggered by (or offense caused by) uttering
the statement: Saying or writing certain words in certain contexts triggers legal duties or
rights, or may constitute an offense
Whether an utterance is legally operative depends on the substantive law of the

jurisdiction.
This isnt hearsay because they dont depend on the declarants belief or intended
meaning.
EXAMPLE: Witness/defendant on trial for assault asserts self-defense.
Witness/defendant testifies that during a fight with the victim, victim told him, Ill
kill you. The jurisdictions penal code would call this statement under these
circumstances a threat. The statement isnt hearsay because the soundness of the
declarants testimonial capacities doesnt matter. The statement doesnt depend
on the declarants intent because the utterance is legally operative regardless.

INCONSISTENT STATEMENTS for impeachment: A lawyer may impeach a witness
with a prior inconsistent statement she said out of court. This isnt hearsay because it is
only offered to prove the witness said different things at different times, so her testimony
on this one issue cant be trusted. This isnt hearsay because it goes to inconsistency, not
truth, i.e.
inconsistency untruthfulness.

o In the following categories, proponent is trying to prove declarants belief, but doesnt rely on what
the declarant intended to communicate:

NONASSERTIVE WORDS: Involuntary expressions are not hearsay.
EXAMPLE: The declarants exclamation, Ouch! would not be hearsay if
offered to prove declarant was in pain.

Words proffered to prove something OTHER THAN WHAT THEY ASSERT: If
declarants statement is meant to communicate one matter, but proffering party wishes to
use this statement as communicating a different matter, the statement is most likely not
hearsay.
EXAMPLE: At a hearing over a contested will, the beneficiary of the will wants to
enter statements of the decedent, contained in letters the decedent wrote to
others. The letters were about business and political matters. Because the
beneficiary is offering this to show decedent was of sound mind, i.e. his capacity,
this is not hearsay. The decedent didnt intend to communicate anything about
his state of mind when he wrote the letters. Wright v. Tatham.

Assertions about CIRCUMSTANTIAL PROOF OF KNOWLEDGE: If a statement is
offered to prove the accuracy of declarants testimony, i.e. the declarant had circumstantial
knowledge of a particular matter, the statement is not hearsay. Focuses on declarants
knowledge, not her claim to knowledge.. Doesnt rest on the truth of out-of-court
assertions, but of actual knowledge such that theres a tight correlation between the
testimony and what is trying to be proved. Declarants testimonial capacities arent at issue.
EXAMPLE: Minor girl told a cop during an investigation that a uniformed
stranger to her to his room and sexually assaulted her. Her statement described
in detail the room where the defendant took her. Cop testified about the
statement. Not hearsay, because it was meant to prove circumstantially that she
had been in the defendants room, not the truth of her statements. Bridges v.
State.

Circumstantial Evid of STATE OF MIND: If the statement is being offered not for the
truth of the matter, but to prove the declarants state of mind when she made the statement,
then this is not hearsay. (Alternatively, statement could fall under the state of mind
hearsay exception).
EXAMPLE: My husband is a liar and a thief, is inadmissible to prove the truth
of whether the husband is a thief, but admissible to show the declarants disliked
her husband (state of mind.)

TEST TIP: If a statement is circumstantial evidence of SOM Not hearsay. If
offered as direct evid of SOM It is hearsay, under the 803(3) exception.

2. HEARSAY EXEMPTIONS (NOT HEARSAY) FRE 801

If Declarant is a WITNESS:

o Declarant-Witness Prior INCONSISTENT Statements offered SUBSTANTIVELY, i.e. not for
impeachment:
FEDERAL RULE: 801(d)(1)(A)
1) Prior inconsistent statement
2) By W
3) Currently subject to cross-examination
4) W/ prior statement made under oath at a prior trial, hearing, deposition
Inconsistency can be shown by proving that the declarant/W asserted failure to remember
the incident which is the subject matter of the prior statement is untrue.
IMPORTANT: If prior inconsistent statement was not under oath, it might still be used
for impeachment, just not substantive evidence. Judge must instruct jury accordingly.
CALIFORNIA RULE: 1235 Broader than the FRE because it allows unsworn prior
statements.
1) W has opportunity to explain or deny, and
2) Hasnt been excused from giving further testimony (W usually is excused and subject to
recall before the extrinsic statement is admitted)
RATIONALE: Inconsistent statement is usually more likely to be true than the present
testimony at trial; statement was made nearer in time to the matter it relates to, less likely to
be influenced by controversy in the present litigation. Inconsistent statement requirement
ensures a fuller exploration of both versions of the story.
EXAM TIP: If offered for impeachment Not hearsay.
EXAM TIP: Even if prior inconsistent statement isnt made under oath, it might still be
admissible for impeachment. Judge will instruct jury to consider it only for credibility of
W, not as substantive evidence.
EXAM TIP: Per ACN, grand jury testimony excluded from this rule.

o Declarant-Witness Prior CONSISTENT Statements:
FEDERAL RULE: 801(d)(1)(B)
1) Prior consistent statement
2) By W
3) Presently subject to cross examination
3) Made before motive to fabricate, and
5) Offered to rebut and express or implied charge of fabrication
If the opposing party opens the door for admission, no reason why it shouldnt be
admitted.
Is statement a prior
inconsistent
statement made
under oath?
consistent statement
to rebut a charge of
W's recent
fabrication, motive?
out-of-court ID by the
W?
Is statement an
admission by the
opponent?

CALIFORNIA RULE: 1236 Broader than FRE. Allows W to be rehabilitated with a
prior consistent statement after impeachment with prior inconsistent statement.
RATIONALE: Rule is concerned w/ rebutting an alleged motive, not bolstering the
veracity of the story told/proving the truth of the matter asserted. Prior consistent
statements generally have little rebuttal force, but if the statement predates the motive, its is
useful to rebut a charge that the testimony was contrived because of the motive.

o Declarant-Witness Statements of IDENTIFICATION:
FEDERAL RULE: 801(d)(1)(C)
1) Prior ID
2) Shortly after perceiving the person IDed
3) By W
4) Presently subject to cross examination
NOTE: Does not include courtroom identifications and lineup identifications.
CALIFORNIA RULE: 1238 More restrictive.
1) ID must be made when the crime/event was fresh in the Ws memory
2) W must also testify that it was a true reflection of his opinion at the time.

Admission by PARTY-OPPONENT:
o The opposing partys own statement:
FEDERAL RULE: 801(d)(2)(A)
1) Statement (not necessarily an admission on its own)
2) Made by a party
3) Whom the statement is offered against.
NOTE: Personal knowledge not required for the statement. Also can be made w/in a
representative capacity.
CALIFORNIA RULE : 1220 No substantive difference.

o Adopted statements/admission, i.e. statement that the opposing party has shown that he believed to
be true:
FEDERAL RULE: 801(d)(2)(B)
1) Party heard and understood
2) Statement by another
3) Had opportunity and good reason to reject/object to statement
4) Failed to do so.
CALIFORNIA RULE: 1221 No substantive difference
SPECIAL PROBLEMS SILENCE as ADMISSION: Silence is sometimes relied upon.
This requires analyzing whats expected of human behavior. Theoretically, a person would
protest the statement made in his presence under normal circumstances, if true. Easier in
civil cases; harder in criminal cases, because silence might be motivated by counsels advice
to stay silent or Miranda. So in criminal cases, silence doesnt necessarily mean admission
by silence watch for Miranda warnings.
RATIONALE: Partys knowledge of the statements contents isnt necessary in this
context. Party simply adopts another persons statement as his own.

o Statements by SPOKESPERSONS, i.e. where proffering party doesnt have control over the
witness, e.g. an expert witness:
FEDERAL RULE: 801(d)(2)(C) - Statement made by someone the party authorized to
make the statement
CALIFORNIA RULE: 1222 - Substantially the same

o Statements by AGENTS:
FEDERAL RULE: 801(d)(2)(D)
1) Statement made by partys agent on a matter thats part of the agency/employment, and
2) Statement was made while an agency relationship existed between party and agent.

CALIFORNIA RULE: 1224 - Only statements by the agent who caused the claim/defense
related to the statement may be admitted against the principal.

o Statements by CO-CONSPIRATORS
FEDERAL RULE: 801(d)(2)(E)
1) Statement made by partys co-conspirator
2) During course of & in furtherance of conspiracy
NOTE: Statement of co-conspirators made after party left the conspiracy are not included
here.
But statements made before are deemed adopted by the party when party joined the
conspiracy.
CALIFORNIA RULE: No substantive difference.

3. GENERAL EXCEPTIONS (ADMISSIBLE HEARSAY) FRE 803
REGARDLESS WHETHER DECLARANT IS AVAILABLE

Where hearsay is EXCLUDED WHETHER OR NOT declarant is available:

o Present-Sense Impression:
FEDERAL RULE: 803(1)
1) Statement describing or explaining an event or condition,
2) made while or immediately after the declarant perceived it.
Doesnt necessarily need to excite the declarant. Usually just a few seconds.
CALIFORNIA RULE: 1241 Narrower. Only allows statements offered to explain
declarants conduct, made contemporaneously with that conduct.
RATIONALE: Immediacy of statement makes it less likely there was a
deliberate/conscious misrepresentation.

o Excited Utterance:
1) Statement relating to a startling event/condition,
2) Made while the declarant was under the stress or excitement that it caused.
Broader than present sense impression. Doesnt necessarily need to be immediate. Could
be hours, minutes, possibly even days after the event.
Editorializing is okay.
CALIFORNIA RULE: 1240 No substantive difference.
RATIONALE: Similar to present-sense impression; stress lessens the capacity for
reflection and therefore should lessen the likelihood of conscious fabrication.
EXAMPLE:
EXAM TIP: Watch for exclamation points on exams!!! Not always present, but often
signifies an excited utterance.

o Then-Present Mental/Emotional/Physical State (DIRECT evid of SOM):
FEDERAL RULE: 803(3) Statement of declarants then-existing state of mind (motive,
intent, or plan) or emotional, sensory, or physical condition (mental feeling, pain, or bodily
health) but not including a statement of memory or belief to prove the fact remembered or
believed, unless it relates to the validity or terms of declarants will.
Applies in the limited circumstances where the declarants state of mind is at issue.
EXAM TIP: Cannot simply add I believe to implicate the rule; Red herring.
Also, if statement is circumstantial evid of SOM, then its not hearsay. If it is direct
evidence of SOM, then its hearsay w/in the 803(3) exception.
CALIFORNIA RULE: 1250-1252, 1370 Broader.
RATIONALE: The statement is editorial, doesnt go to the truth of the matter asserted,
but speaks to the declarants mental state.

EXAMPLE:

o Statement Made re: Medical Diagnosis/Treatment:
1) Made in connection to a diagnosis or treatment (not necessarily to a doctor)
2) Describes medical history, ailment, symptoms, pain, or causes thereof.
Exception to this exception: Statements of fault generally regarded as collateral and
excluded, i.e. excluded from this rule when the doctors knowledge has to do with who is a
fault/committed a crime/injury
CALIFORNIA RULE: No equivalent to FRE. Inadmissibly unless declarant is a minor
whose statement is about abuse.
RATIONALE: Considered reliable/guaranteed truthful because FRE supposes that
patients believe its in their best interest to be truthful with their doctors to receive an
appropriate diagnosis.

o Recorded Recollection:
Must be
1) Written
2) Is on a matter that W once know about but doesnt now recall well enough to testify
fully and accurately,
3) Was made or adopted by W when matter was fresh in Ws memory
4) Accurately reflects ws knowledge
EXAM TIP: Must be recorded and related correctly.
Maybe only be read into evidence, not as an exhibit.
(Sometimes requires two witnesses, if statement was transcribed by someone other than
declarant. Both layers of hearsay must be cleared.)
CALIFORNIA RULE: No substantive difference.
RATIONALE: Inherently trustworthy because the record was made while events were still
fresh in mind and therefore accurately reported.
EXAMPLE:

o Business Records:
Written statement
1) Made at/near time of act
2) Declarant had firsthand knowledge
3) It was businesss regular practice to keep such records, and relates to primary business of
the organization
4) Authenticated/certified
CALIFORNIA RULE: 1271 Broader. Record doesnt have to be made within the
regular course of business. Burden of proof is on opponent to show lack of
trustworthiness.
RATIONALE:
EXAMPLE:

o Absence of Business Records:
FEDERAL RULE: 803(7) Absence of a regularly conducted activity can be admissible if:
1) Admitted to prove the matter didnt occur/exist,
2) A record wouldve been kept for a matter of that kind, AND
3) Circumstances are trustworthy.
Burden of proof on proponent to show trustworthiness.
CALIFORNIA RULE: 1272 - Same, but burden of proof is on opponent to show lack of
trustworthiness.
RATIONALE:

EXAMPLE:
EXAM TIP: Police/other law enforcement records arent generally admissible against D in
a criminal case per the business records exception. These are inherently adversarial and
made in anticipation of litigation. BUT they are admissible when the officer testifies.

o Public Records:
1) Written statement (memo, data record, etc.) setting forth activities of office, OR
2) Relates an observed matter the declarant has a legal duty to report (except police/law-
enforcement reports in criminal cases), OR
3) Relate factual findings discovered pursuant to declarants legal authority to investigate (in
criminal cases, only against the govt) unless the circumstances indicate untrustworthiness.
Burden of proof on proponent to show trustworthiness.
TIP: Police records dont apply under the public records exception. Theyre under the
business records exception IFF the officer testifies.
CALIFORNIA RULE: 1280
Broader. Public record isnt hearsay if
1) Made by and w/in scope of duty of a public employee,
2) Made at/near the time of the act, AND
3) Sources circumstances indicate trustworthiness.
Burden of proof on opponent to show untrustworthiness.
RATIONALE:

4. EXCEPTIONS (ADMISSIBLE HEARSAY) FRE 804,
ONLY WHEN DECLARANT UNAVAILABLE

A. Generally

GENERAL CRITERIA
o FEDERAL RULE: 804(a) Declarant considered unavailable if:
Exempt through privilege;
Refuses to testify despite court order;
Testifies about not remembering about subject matter;
Cant be present because of death, physical/mental illness, infirmity (incl. incompetence), OR
Absent and proponent cant get declarant to appear.
NOTE: Doesnt apply if statements proponent wrongfully caused declarants absence to prevent
him from testifying.
o CALIFORNIA RULE: 240 Mostly the same.
IMPORTANT: Party cant make himself unavailable to testify by invoking privilege.

B. Admissible Hearsay

Unavailable declarants FORMER TESTIMONY
o FEDERAL RULE: 804(b)(1)
1) Declarant must be unavailable
2) Statement must be from W against witness or deponent in same or different proceeding.
3) Party against whom testimony is offered had opportunity to examine W on direct, cross, or
diredirect.
[Different from FRE 801(d)(1)(A) in that 801(d)(1)(A) requires the prior statement to have been
under oath and subject to cross-examination.]
o CALIFORNIA RULE: 1290-1292 Mostly the same.
Minor differences: CEC doesnt treat depositions in the same proceeding as prior testimony, but

does for depositions from other proceedings.
Declarant cannot invoke a privilege by making himself unavailable to testify.
o RATIONALE:
o EXAMPLE:
o EXAM TIP: In criminal proceedings, former testimony exception doesnt apply unless the party
the evidence is offered against was also a party in the former proceeding.
o EXAM TIP: Issues in both trials must be substantially the same, but need not be identical.

Unavailable declarants DYING DECLARATION
1) Statement made while he believed his death was imminent/mustve believed there was no hope
for recovery;
2) Declarant must now be unavailable;
3) Statement must relate to what declarant thought was the cause/circumstances of his death; AND
4) Introduced in a civil case or homicide case.
o CALIFORNIA RULE:
1) Broader. Not limited just to civil and homicide. Allowable in any civil/criminal action.
2) Narrower. Declarant must actually die in California.

Unavailable declarants STATEMENTS AGAINST HIS OWN INTEREST
o FEDERAL RULE: 804(b)(3) -
1) Declarant unavailable;
2) Statement contrary to some interest or expose him to civil/criminal liability, AND
3) Statement made in context of corroborating circumstances that show trustworthiness
NOTE: If the statement against his own interest is accompanied by more statements, only those
contrary to his interest are admissible.
o CALIFORNIA RULE: 1230 Broader. Allows declarants statements that put him at risk of
hatred, ridicule, or social disgrace.

Forfeiture by Wrongdoing (Statement offered AGAINST PARTY that wrongfully CAUSED declarants
unavailability)
1) Declarant unavailable
2) Party wrongfully caused or acquiesced to declarants unavailability, AND
3) Statement offered against that party.
o CALIFORNIA RULE: 1350 Narrower.
Must have clear, convincing evidence that party caused the unavailability.
Must be digitally or tape recorded.
Case must be criminal and involve a serious felony.

5. RESIDUAL EXCEPTION

If hearsay doesnt fall within one of these exceptions:
o FEDERAL RULE: 807 It might be admissible if
1) Theres a necessity for the statement; AND
2) The content or circumstances of the statement guarantees its trustworthiness.
The proponent must first notify the opponent in advance regarding the nature of the statement so he
can have the chance to rebut it.
o EXAM TIP: Rely on this exception last.

CHAPTER 8: CONFRONTATION CLAUSE

Exclusion of Hearsay even if it fits an exception

o SIXTH AMENDMENT CONFRONTATION CLAUSE A criminal D has a right to confront
and cross-examine those who bear testimony against him.
o When available:
Criminal case
Testimonial hearsay offered against D.
Testimonial = Prepared in anticipation of litigation:
Inquire into the primary purpose of BOTH the declarant and questioner (if any).
FACTORS:
1) Does statement concern events that are actually happening?
2) Does the statement, viewed objectively, relate to an ongoing emergency that the
speaker has a primary purpose of addressing (as opposed to providing a narrative
of a crime in anticipation of litigation)
3) Were statement necessary to resolve the emergency?
4) Degree of formality surrounding the statements.
EXAMPLES of TESTIMONIAL statements:
o In-court testimony, affidavits, custodial confessions
o Drugs samples in affidavits by non-testifying law enforcement lab techs
o Unsworn lab tech reports (but a non-participating supervisor cant serve
as a surrogate witness testifying about a test of one of his technicians)
EXAMPLES of NONTESTIMONIAL statements:
o Co-conspirator statements,
o Casual remarks to non-law enforcement, w/out intent of being forwarded
to police.
o SOME business records

o When NOT available:
Civil case, or against prosecution
Statements not offered for their truth, i.e. nonhearsay
Past trial statements, i.e. where declarant testifies/responds to questions about the
statement;
Statements under oath, declarant now unavailable If declarant testifies and is subject to
cross, and is now unavailable
Statement by co-conspirator
Forfeiture by wrongdoing
Dying declaration

Aranda-Bruton Doctrine
o Bruton v. United States -
Accomplice tried jointly with D
+ Accomplice confesses out-of-court
+ Accomplice doesnt testify/not subject to cross
= Likely inadmissible against D per the Confrontation Clause
(True even if the court gives the jury a limiting instruction to consider the statement only against the
accomplice)
o Cruz v. New York CC also bars:
Co-defendants confession
Incriminating D
Even if Ds own confession (corroborating Co-Ds) is admitted against D.
o EXAMPLE:
D and accomplice both convicted of armed postal robbery;
Accomplice orally confessed to a postal inspector that he and D committed the robbery;
Postal inspector testified as to the accomplices confession;
Judge instructed jury to consider the testimony only against accomplice;
Accomplice did not take the stand (D denied his right to confrontation)
Admission of testimony was abuse of discretion/violated CC despite the limiting instruction.

Bruton v. US

o Avoiding a Confrontation Clause violation:
* Accomplice/Co-Conspirator Submits to Examination/Cross-Examination
If the accomplice takes the stand and submits to cross, defendant has no CC objection.
* Declarant/Co-Conspirator/Accomplices Previous Statement
Accomplice now unavailable, but previously testified and was subject to cross earlier in the
same case.
Try Ds separately
Trial against Declarant: Prosecution could offer statement in the trial against the declarant.
Trial against non-Declarant: Prosecution would make no mention of the statement.
Separate juries for each D
One jury would hear declarants statement. The other jury would not.
Redaction
NOTE: insertion of blank isnt enough. Statement must be rephrased.
Bench trial
Admissibility of statement against D who didnt make the statement
If statement is directly admissible against D, e.g. a coconspirator statement.
NOTE: an accomplices confession almost never qualifies as a co-conspirator statement,
since confessions rarely occur during the furtherance of the conspiracy

CHAPTER 9: LAY OPINIONS & EXPERT TESTIMONY

Opinion Testimony by LAY Witnesses
o FEDERAL RULE: 701 A non-expert may testify in the form of an opinion. Requires:
1) Perception: Rationally based Ws perception, i.e. W must have personal knowledge;
2) Helpfulness: Testimony must be helpful to understanding testimony or determining a fact at
issue; AND
3) Non-expert: Not based on specialized knowledge (as opposed to an expert testimony.)
o CALIFORNIA RULE: 800 Same perception and helpfulness requirements;
CEC has no requirement against specialized expert knowledge. FRE stricter.

EXPERT Testimony
o FEDERAL RULE: 702 A person qualifies as an expert if he has proper qualifications and:
1) Helpfulness: Testimony helpful to aid jurys understanding of an issue;
2) Sufficient: W has sufficient factual basis for his opinions;
3) Reliability: Testimony produced with relevant and reliable methods; AND
4) Application: W reliably applied those methods to the facts of the case.
NOTE: Matters of common knowledge are improper for expert testimony.
o CALIFORNIA RULES: 720, 801 No substantial difference

Proper Bases of Expert Testimony:
o FEDERAL RULE: 703 Expert may base his opinion on information he is personally aware of, or
became aware of at or before the hearing.
That information doesnt need to be independently admissible as evidence.
But if the information is inadmissible, judge must decide that its probative value outweighs its
prejudicial effect, before expert can disclose the information to the jury.
o CALIFORNIA RULE: 803-804 Judge has the discretion to admit the otherwise inadmissible info
relied on by the expert, if the prejudicial effect doesnt substantially outweigh its probative value.
o RATIONALE: This hearsay is acceptable because it isnt considered for its truth; its considered
for whatever assistance it could provide the jury in determining whether the expert is
reliable/credible.

o EXAMPLE: Expert allowed to rely on hearsay to form an opinion, but generally may not quote the
hearsay to the jury.

Opinions on an ULTIMATE ISSUE
o FEDERAL RULE: 704 Party cant object to an opinion just because it relates to an ultimate issue
before the court,
Except in criminal cases, where expert W cannot give OT about Ds mens rea.
o CALIFORNIA RULE: 805-870 Allows lay and expert OT about sanity in a criminal case.

When Expert W must DISCLOSE INFO UNDERLYING his OT
o FEDERAL RULE: 705 Expert W doesnt need to testify to the info underlying his OT, but may
be required to disclose the info on cross.
o CALIFORNIA RULE: 802 Judge has discretion to require the disclosure of experts information
before the OT.

CHAPTER 10: AUTHENTICATION

Basic Issue: What foundation must one lay to gain admission of an item of physical, documentary, or (some)
demonstrative evidence?
Essentially, must clear the low hurdle of FRE 104(b) conditional relevance; All thats necessary is that a reas
jury could
REMEMBER: Stipulations for foundation laying; Requests for admission;
EXAM TIP: Look out for MC answers where evidence is prepared for trial. Its usually incorrect.

Authentication requirement:
o FEDERAL RULE: 901 Must have sufficient evidence to support that the evidence is what the
proponent says it is.
Must be authentic AND relevant.
NOTE: Authentic Admissible
Lots of ways to establish necessary foundation; FRE 901 is merely illustrative
o CALIFORNIA RULE: 1400-01 No substantial difference (1400-01 explicitly mention only
writings, but 140 and 210 imply that other tangible things must also be authenticated.

CHAPTER 11: BEST EVIDENCE RULE

Generally:
o FEDERAL RULE: 1001-1002 - Rule signals a preference for original or duplicate documents when
the issue before the court is the contents o those documents;
IFF a party wants to provide the contents of a doc, photo, recording original doc, photo, or
recording is necessary.
You can also use party-admissions to establish contents (FRE 1007)
Concerned only with writings (words, letters, numbers, regardless of the form in which theyre set
down) and photographs.
Original = the document itself or any of its counterparts intended to have the same effect by a
person responsible for making/issuing it. Also applies to printouts of ESI.
Duplicate = a counterpart produced by a means or technique that accurately reproduces the

original. Method of reproduction must not carry a risk of human error, e.g. OK to use a copy
machine, but not a re-typed document copying an original.
o CALIFORNIA RULE: 1520-1522, 1550 - More liberal. Allows secondary evidence to prove the
contents of the document, with the exception of:
- Oral testimony, and
- Where the material content of the doc is in genuine dispute,
- Where admission of secondary evid would be unfair

What happens when a party fails to produce the original/duplicate document?
o May be excused if:
Originals lost/destroyed without bad faith;
Originals cant be obtained;
In possession of adverse party refusing to produce;
Contents of documents only speak to collateral matters;

UNIT III: PRIVILEGES
[not tested on Sp 2013 exam]

Graham Evidence Spring2013 2

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