california bar exam outline - evidence
California Bar Exam Outline - Evidence
This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
- PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
- BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
- PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
- PMBR Multistate Workbook Volume 1 MBE answers
- PMBR Multistate Flashcards
- Strategies and Tactics for the MBE, by Emanuel
- PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
- Exam approach
- Federal rules apply
- Must discuss for each and every issue (in this hierarchy): Competency (judge decides), logical and legal relevancy, character, impeachment, type of witness (person, opinion � lay or expert, document � best evidence rule), judicial notice, hearsay, hearsay exceptions, privileges.
- Generally wrong answers: Res guesti; documents must be offered in their entirety; inadmissible as self-serving; inadmissible as cumulative evidence; a mixed conclusion of law and fact; admissible as a statement of recent perception; past recollection refreshed (no such thing); expert opinion based on facts not in evidence (permissible); catch-all hearsay exception; any concepts you don�t recognize.
- Default hearsay answer: Inadmissible as not within any recognized exception
- Crossover question: If the subject matter falls under the UCC, then course of dealing, usage of trade, course of performance is admissible to help interpret the K.
- Determination by judge
- Determined by trial judge as a matter of law. Weight and credibility of evidence is a question for the jury.
- Affidavits and hearsay are allowed in determining preliminary questions.
- Proponent of evidence has burden to establish preliminary facts (competency, qualification, unavailability, privilege) by a preponderance.
- Hearings on objections/admissibility are done outside presence of jury.
- Testimony by criminal D as to preliminary issue does not constitute waiver of 5th as to other issues.
- Objections must be timely (before witness answers, if possible) and contain specific legal grounds (i.e. offer of proof), in order to preserve issue for appeal. Exception: If substance of evidence is obvious from context (i.e. contained in court transcript), or admission or exclusion constitutes plain error by denying D fair trial. Prejudicial error: If the jury verdict would not have been affected by trial court�s ruling, then only harmless error has occurred, and reversal is not proper. Prejudicial error affects substantial rights (outcome of the trial) must be found. Limited admissibility: Court may allow evidence for one party or one purpose but excluding for another when the evidence would be improper, and can instruct the jury to disregard evidence for certain purposes.
Requirement of personal knowledge
Person testifying generally must have firsthand knowledge about the matter he is testifying to (actually observed or perceived the event).Burdens
Degree to which the party must convince trier of fact re: issue. Never shifts between parties � always on p . Civil: By a preponderance of the evidence (51%). Civil based on crime (fraud): Clear and convincing evidence. Criminal: Beyond reasonable doubt.Production
Party must introduce initial evidence on each element of an issue, such that reasonable trier of fact could infer proof of facts alleged, or risk directed verdict against the party. Buren of going forward and presenting the evidence. Generally on the p , but can shift to D (i.e. affirmative defense).Proof: Burden of production and burden of persuasion. Presumptions
Presumption shifts burden of production to O/P (burden of going forward with evidence to rebut or meet presumption, but does not shift burden of proof). A presumption is an inference which may be drawn when one set of facts establishes a very high probability of the existence of another set of facts, absent a contrary showing, at which point the presumption disappears and burden of persuasion shifts back to original party.
- Irrebuttable presumption: Basic facts conclusively establish presumed facts. Treated as rules of substantive law, rather than presumption. Example: Child under certain age incapable of committing intentional tort.
- Where claim or defense arises under a state law diversity case, the law of the state applies as to the effect of a presumption under Erie.
Criminal cases: Presumptions are constitutional, but only permissive presumptions, which allows jury to use presumption, but they don�t have to. If presumed fact establishes guilt or is an element of the offense, court must instruct jury that existence of presumed fact must be proved beyond reasonable doubt.Affirmative defenses
p has burden of persuasion to prove all issues beyond reasonable doubt. Burden of persuasion shifts to D to show some evidence of affirmative defense, followed by p showing issue beyond reasonable doubt, or show affirmative defense by preponderance of evidence.Relevancy / Probative sufficiency
- Logical Relevancy: Only relevant evidence is admissible. Evidence is relevant if it has any tendancy to make the existence of a material fact (one of consequence) more likely or less likely than it would be without the evidence. Legal Relevancy: Some relevant evidence is inadmissible because the probative value is deemed to have been substantially outweighed by unfair prejudice (shocking evidence), confusion, misleading the jury, waste of time, cumulative evidence (but not unfair surprise); or public policy reasons.
- Discretionary exclusion
- Typical fact patterns: Gruesome evidence, statistical probabilities, prior bad acts used to impeach criminal D (even when otherwise permitted)
- Will a limiting instruction to the jury be sufficient to protect against improper inference?
- Less offensive alternatives
- Does the evidence go to a material or collateral issue?
- Risk of convicting innocent person by introducing evidence
Evidence of liability insurance is inadmissible to show fault, negligence, or ability to pay ("I ran the red light, but I have insurance"). Exceptions: To show agency, ownership, control, bias, prejudice, or motive.Subsequent remedial measures
Inadmissible to show negligence or culpable conduct (purpose is to encourage people to make repairs without fear of liability). Exceptions: To show ownership, control, feasibility of precautions if controverted, impeachment, or in strict liability cases to establish defect in product. Remedial measure may include repairs, changes in procedure, termination or training of employee.Settlements
Offers to settle, negotiations, and actual settlements or compromises, and any statements made in connection therewith, are inadmissible to prove liability.Medical Expenses
Payments of medical expenses is inadmissible (encourages Good Samaritan payments), but admission of fault made in connection with offer to pay medical expenses is admissible.Offers to Plea
Offer to plead guilty, nolo contender, or actual pleas later withdrawn, and statements made in connection therewith, are inadmissible in criminal and civil cases. Exceptions:
- Prove bias or prejudice
- Contravert contention of undue delay
- Prove that a party attempted to obstruct criminal investigation
- Where D does not dispute fault or liability
- Prosecution for perjury
- Purposes of impeachment
- Actual guilty plea not withdrawn can be used in a civil case
- Entry of judgment following guilty plea is admissible under a hearsay exception
Failure of a party to call a witness or failure to take the stand cannot lead to an adverse inference so long as the witness is equally available to both parties. Evidence may be admitted for some purposes and excluded for other purposes. Neither judge nor jury member can testify in trial they are sitting on.Conditional Relevancy: Where relevancy of proffered evidence depends on existence of other fact, evidence admissible until evidence produced re: nonexistence of other fact.Character evidence
General rule: Reputation, opinion, and specific instances of conduct bearing on character or propensity is inadmissible to prove conduct consistent therewith. Exceptions to this general rule:
- Criminal case
- Mercy rule: D can use reputation and opinion of good character relevant to the crime to prove innocence, after which point the �door is open� and p can rebut with bad reputation and opinion.
- Except in rape cases, D can show bad reputation, opinion or acts of victim when that supports D �s contention that he is innocent. After such a showing, the door is open and p can rebut with character evidence, including acts, pertaining to victim showing that D did commit the crime. Example: In a self-defense claim, p can claim that victim has a bad reputation for violence, at which point p can rebut D �s claim by showing that victim has peaceful character. Requires notice to opposing party.
- Rape cases: Victim�s sexual behavior (reputation, opinion, bad acts) is inadmissible per rape shield laws, except to show specific acts which would explain signs of rape (other source of sperm), or past acts with D which would show consent. Requires notice to opposing party; in camera hearing under seal. p may introduce similar crimes (specific acts) against D in sexual assault cases and child molestation cases, upon notice to D prior to trial.
Civil rape case: Victim�s character admissible if probative value outweighs danger of harm to victim; outweighs unfair prejudice to any party; and placed into controversy by victim. Habit and routine practice: Circumstantial evidence of person�s or corporation�s regular (not just frequent or often) response to repeated specific situation (not merely a generalized disposition), whether corroborated or not, and regardless of presence of witnesses, may be used to prove conduct in conformity with routine practice. Habit is admissible even if it contradicts eye witness testimony.Reputation, opinion, and specific instances of conduct bearing on character or propensity is admissible as direct evidence for any relevant purpose other than proving conduct consistent therewith.
- Character and reputation as an essential issue (defense to defamation, child custody, issue of damages) or where knowledge of character of another is at issue (negligent entrustment, self defense). Most commonly used to show MIMIC: Motive, Intent, absence of Mistake, Identity, Common plan or scheme.
Methods of proving character
- When character evidence is permitted, reputation and opinion is always admissible.
- On cross-x, inquiry is allowed into specific instances of conduct.
- Testimony must be directed to a pertinent trait � i.e. "good neighbor" doesn�t address propensity for violence, whereas "peacefulness" does.
- Character evidence is not an exception to the hearsay rule: Character evidence which violates the hearsay rule without an applicable exception is inadmissible.
Character evidence (reputation, opinion, specific acts) may be used to impeach a witness on cross-examination, and then rehabilitate the witness on direct.
- Testimony re: credibility does not waive privilege.
Credibility may be attacked by any party.
- At common law, only opposing party could attack credibility.
- Own party would want to impeach own witnesses when:
- Hostile witness
- Testimony is positively harmful to calling party�s case
- Where one party calls opposing party as witness (adverse witness), in which case impeachment can come before direct examination.
Evidence must either tend to discredit the witness� testimony as a whole by showing bias, defects in perception or memory, contradictory evidence, or untrustworthy character; or testimony about an outcome-affecting fact by showing a material inconsistent statement.
- Can be shown on cross-examination or through extrinsic evidence [majority requires opportunity to deny or explain].
- Impeaching attorney must act in good faith.
- Religious beliefs cannot be used to attack credibility.
Opinion and reputation evidence
Cross-examination (intrinsic) or extrinsic evidence. Witness who is familiar with another�s opinion or reputation for untruthfulness can testify, at which point the person attacked can rebut with reputation and opinion evidence of truthfulness. Impeach witness�s qualifications on cross by asking "have you heard" or "do you know" re: specific D �s acts which would affect reputation or tarnish opinion. If p �s witness doesn�t know about acts, witness doesn�t know p very well; if witness does know, then she isn�t credible. Judge may limit if asked in bad faith, overly prejudicial, or acts are too remote.Crimes
Felony conviction released less than 10 years ago (or at judge�s discretion, with notice to O/P) can be admitted by admission of party or showing certified copy of conviction, subject to judge�s discretion (probative vs. prejudice). Misdemeanors involving truthfulness or honesty can be used without a special foundation, if released within last 10 years. Appealed conviction is admissible, but witness can show that the appeal is pending. Pardoned conviction inadmissible. Juvenile conviction inadmissible against D , but ok against prosecution witness in criminal case.Unconvicted prior bad acts
Can be revealed by cross-examination of witness, but not by extrinsic evidence (i.e. calling TP to the stand). The acts must be probative of untruthfulness: Doing drugs isn�t, but fraud is.Prior inconsistent statement
Of a party: Prior inconsistent statements can be used both to impeach and substantively (under the hearsay exception). Of witness: Witness must be afforded opportunity to explain or deny. O/P has right to cross-examine. Statement may be admitted substantively if it fits a hearsay exception.Contradiction of witness� testimony (extrinsic evidence allowed) Witness cannot be contradicted about collateral matters with extrinsic evidence (evidence not from his mouth), and witness must be afforded opportunity to explain or deny extrinsic evidence. Rehabilitation of impeached witnesses
- Cannot show truthfulness of witness until attacked.
- Prior consistent statements usually does not rehabilitate showing of prior inconsistent statements. Admissible to rebut charge of recent fabrication or improper motive. Admitted to rehab and for the truth of the matter contained.
- Explanation on redirect.
Complicated issues of causation can be proved when multiple p �s are harmed by D �s acts (too many to be a coincidence). Similar happenings and transactions: Proponent must show a substantial identity of material circumstances. Example: Proving that a dangerous condition existed, or that a party was aware of the condition, comparable sales to establish value, prior tort claims to show p �s common scheme if prior claims were false or re: same part of body (otherwise too prejudicial), prior K�s between parties to show prior course of dealings or usage of trade, industrial custom as evidence of standard of care, evidence of party�s business routine to infer that business acted in accordance with usual routine. Absence of similar happenings and transactions: Proponent must show substantial identity of material circumstances, and that the happening would have been known by witness if it occurred. Example: Showing that due care was exercised, or showing that a certain circumstance is not dangerous (no one has ever been injured before). Rebuttal evidence: When opponent raises an issue, he "opens the door" and allows you to rebut. Example: Tort D claims impossibility, p can show other similar events.Foundation / Authentication
Proponent must offer sufficient evidence to sustain a finding that the evidence is what the proponent purports it to be. Can usually be satisfied by testimony of witness with knowledge of the evidence. Demonstrative evidence: Maps, charts, models, other visual aids (even visual comparison of child to father in a paternity case) are generally used only for explanatory purposes and not offered as substantive evidence. Includes when OJ tried on the glove. Scientific evidence: Testing, analysis, and processes are authenticated by showing that the process is reliable, and there is sufficient evidence tha the process, test or experiment was correctly conducted (i.e. qualified operator using generally accepted techniques). Voice / Phone
Testimony by anyone familiar with the voice of alledged speaker, evidence of distinctive characteristics, or comparison by expert or trier of fact; Call placed to number assigned to that person by the phone company, and caller self-identified; or Call made to place of business (number assigned by phone company), and conversation related to business reasonably transacted over the phone. Mere identification by the caller is insufficient.Physical objects: Personal knowledge of familiarity, distinctive markings, or chain of custody. Displays, views and comparisons of other tangible evidence Documentary evidence
Writings: Direct or circumstantial evidence that the writing is what it purports to be. Testimony of author not necessary.
- Cricumstantial evidence: The contents reveal information which tends to identify the source of the message. Example: Proof of first letter authenticates the response to that letter.
- Public records from the public office where those records are normally kept.
- Ancient documents: Those which are over 20 years old (CL: 30), unsuspicious in appearance, produced from a place of custody natural for such a document, and in such a condition that authenticity isn�t questioned.
- Introduction of parts of a writing: Once part of a writing or recorded statement is introduced, adverse party may request to see and/or admit any parts of the writing, or the whole writing, or any other writing which in fairness ought to be contemporaneously considered. But there is no requirement that a document be admitted in its entirety.
- Domestic public documents bearing a government seal and attestation signature.
- Foreign documents signed by government official accompanied by certification consul of genuineness of signature and official position.
- Certified copies of public records
- Official publications
- Newspapers and periodicals
- Trade inscriptions (labels)
- Acknowledged documents (notarized)
- Commercial paper
Handwriting specimens: Nonexpert familiar with person�s handwriting (so long as familiarity not acquired for purpose of litigation), expert, or comparison by trier of fact. Photograph: Don't have to call photographer. Any witness familiar with scene depicted in photo can testify that the photo is an accurate portrayal of what it depicts.Best evidence rule
- Applies to writings, films, recordings, photographs where:
- Independent legal significance (will, warranties in a K, photograph in a pornography action, defamatory writing);
- Offered as evidence to prove the content or an event (x-ray to prove injury, receipt to prove payment) � writing must avoid hearsay rule; or
- Where testimony is reliant on writing, not reliant on personal knowledge (testimony based on letter, x-ray, etc.)
The writing must be produced
Any computer printout of stored information is considered to be an original. Duplicates and photocopies are admissible and treated as the original, unless genuine question of authenticity or unless it would be unfair to admit duplicate. Public (recorded) documents if certified or testified as to correct by witness who compared it with original. Admission of contents by party-opponent. The document doesn�t have to be offered in evidence so long as it is produced for examination and inspection (i.e. document used for past recollection recorded is read into evidence, but not introduced itself; same for treatises used to cross-x an expert).Or shown to be unavailable
If the original is lost or destroyed in good faith, unobtainable, or in possession of opponent. If original under control of party against whom it is being offered, and despite request to produce, party fails to do so. Record so voluminous it can�t be brought into court can be introduced as a summary, but requires authentication of both the original (self-authentication or judicial notice) and summary (person who drafted summary). Oral testimony is admissible only with compelling reasons explaining absence of original, even if a duplicate exists.Unless it relates to a collateral issue
Where contents of the writing are collateral to the matter being litigated (i.e. writing not required to prove that an event described in the writing took place � witness can do so). Merely to prove that a writing existed or didn�t exist. Merely to prove that a statement was madeFacts related to admissibility of secondary evidence can be decided by the judge, but jury must decide dispute as to whether the writing ever existed at all; which of several is the original; or whether secondary evidence correctly reflects the contents of the original.Judicial notice
Court may take judicial notice of an adjudicatory fact which is not subject to reasonable dispute because it is either: Generally known with in the jurisdiction of the court, or capable of determination from sources whose accuracy cannot reasonably be questioned.
- Party against whom judicial notice is taken has a right to be heard.
- Notice must not be taken of matters that are ultimate issues in the case (i.e. what the standard of care is in a negligence case).
Discretionary, on court�s own motion: Laws of foreign countries, laws of sister states, municipal ordinances, regulations of public or private agencies, matters of local geography, economic data (insurance rates, interest rates, customary salaries paid, current events, political events, trademarks, patents). Mandatory upon request by party when supplied with adequate supporting information about:
- State and federal law; or
- Indisputable scientific facts (blood test to prove paternity, radar, ballistics test.
Civil cases: Satisfies p �s burden of persuasion. Jury must accept as conclusive. Facts are treated as indisputable, and no contrary evidence is permitted. Criminal cases: Jury may accept as conclusive facts which are judicially noticed, but court must instruct jury that it is not required to accept the facts as conclusive.Privileges
- Controlling law
- There are no federal statutory privileges.
- In diversity civil cases and civil cases arising under state law, privilege determined by state law.
- In criminal cases, federal cases, and cases arising under federal law, privilege determined by modern common law.
- Existence of relationship is determined by subjective intent of communicator to derive benefits of the protected relationship, even if confidant was incapable of entering into the relationship (i.e. not really an attorney; common law required actual capacity).
- Communicator must be seeking confidant in confidant�s professional capacity (for professional advice or consultation).
- No compensation or K relationship required.
Communication: Only verbal communications protected (but for spouse and doctor, observations protected). Communications protected regardless of which party makes them.
- Information contained in records is never protected, even if given to a confidant.
Confidentiality: Communication must take place in such a way that safeguards confidentiality. Confidentiality is presumed.
- Communications in public are never confidential.
- TP�s who are subject to their own privilege don�t destroy confidentiality (i.e. a married couple consulting with an attorney).
- Nonessential TP�s destroy confidentiality, as do known or reasonably anticipated evesdroppers. Essential TP�s (agents of the professional) or unknown evesdroppers don�t destroy confidentiality.
- Eavesdroppers may testify, but the communication is still privileged with respect to those in the protected relationship (confidant cannot disclose the information himself).
Holder & waiver: Only holder can assert or waive privilege, and prevent professional from disclosing. In some cases, the confidant must assert the privilege on behalf of the holder (i.e. attorney).
- Waiver can be complete or partial. Holder must assert privilege and object to disclosure, otherwise it�s waived. No waiver if disclosure was compelled erroneously or made without opportunity to claim privilege.
- No inference may be drawn from claim of privilege, and claim should be made without knowledge of jury.
- Court may assert privilege in absence of holder or authorized representative.
Exceptions where privilege not applicable
Attorney-client: Suit between attorney and client; suit between joint clients; where communication designed to advance a crime or fraud; or if communication relates to intent of deceased client re: disposition of property. Doctor: Suit between doctor and patient; patient has put mental or physical condition at issue; doctor appointed by court; competency or commitment proceedings; in furtherance of crime or fraud; where duty to report exists; criminal cases. Husband-Wife: Suit between holders; or in criminal case based on assault of spouse or child.Attorney-client and work product
Survives death of client. Corporate clients
- Federal courts: Protects statements made by even ordinary employees in the scope of their employment to attorneys investigating relevant issues related to the corporation.
- State courts: Privilege applies only to control group, consisting of people having authority to decide corporate policy.
Basic facts re: client (name, address, etc.) not privileged. Billing records aren�t privileged since the privilege only protects communications regarding a legal problem. Work-product: Material prepared by attorney for her own use not protected by attorney-client privilege, but protected under work-product doctrine. Preexisting documents handed over to attorney not privileged.Husband-wife
- Spousal privilege: In federal criminal cases, a spouse can choose to refuse to take the stand against other spouse. Only witness-spouse is holder; not D -spouse. Valid marriage required � terminates at divorce as to all communications. Marital communication privilege: Protects confidential communications and observations made during legally valid marriage, in both criminal and civil cases. Both spouses are holders, so each spouse can prevent the other from disclosure, even after divorce. Exceptions: Crimes against other spouse, children, roommates; statements made in furtherance of future crime or fraud. Presence of young children doesn�t destroy confidentiality.
Political vote Trade secrets, except for fraud or injustice State secrets / government privilege
- Executive privilege: Absolute as to national security, but other info only has qualified privilege which requires disclosure upon showing of special need.
Identity of informant (must be claimed by government), unless identity already disclosed or informant is a witness at trial (but in camera review of evidence is ok). Self incrimination
Only applies to evidence which is testimonial in nature. Real evidence is not protected. Waived by testimony on direct, at which point witness must allow cross-x on matters related to testimony. If D then involkes the 5th, his testimony on direct can be stricken from the record. D may refuse to take the stand, but witness cannot refuse. Both can take the 5th. Immunity: No privilege exists if immunity has been granted.
- Transactional: Prevents witness from being prosecuted for any crime referred to in the testimony. Broad in scope. Use: Immunity from using actual testimony of witness and any evidence derived from testimony. Narrow in scope, but sufficient to compel testimony.
State law controls for diversity cases (Erie). Competency is measured at the time of the event, not at the time of trial. Every person is competent to be a witness unless otherwise excluded. Therefore, testimony should generally not be excluded because of witness incompetence.
- CL: Felons, atheists, children, mental incompetents, financially interested persons and spouses were disqualified. In federal law, these factors go to the weight of the evidence, not admissibility.
- Interested parties can testify, except if state has a dead man�s statute � in a civil lawsuit involving dead person, opposing interested party cannot testify as to any transaction or conversation involving the deceased. If the state has a dead man�s statute, federal court will follow it in diversity cases (Erie).
- Judge presiding over the trial is absolutely disqualified.
- Juror is disqualified if O/P objects, but can testify only as to extraneous prejudicial information or improper outside influence re: jury deliberation (CL said juror incompetent to impeach verdict or testify re: deliberations). No testimony on thought processes or what happened inside the jury deliberation room.
- Attorney is competent, subject to ethical rules.
Witness must testify from personal knowledge. Must be sincere
- Take and understand oath or affirmation. Designed to awaken his conscience and impress upon him the duty to tell the truth.
Must be able to remember and relate at least some of what was perceived.
- Interpreters are allowed if they qualify as expert witness and take oath to testify truthfully.
- Problems with perception are raised in impeachment.
Form of examination
Objections to form of testimony (failure to object waives future objections on appeal)
- Leading Q�s (suggests desired answer to witness) only re:
- On cross-examination (but not where witness is biased in favor of cross-examiner, such as adverse witness being cross-examined by his own attorney).
- Preliminary background information and undisputed facts
- Examination of expert witnesses
- Examination of witness having difficulty with comprehension (old, child, mental problem)
- Adverse or hostile witness
Refresh recollection Narrative: Question to broad and general; testimony tends to include irrelevant and inadmissible responses. Argumentative: Rhetorical or argumentative effect; making a statement. Assuming facts not in evidence: "Have you stopped beating your spouse?" Question assumes a fact to be true that has not yet been established. Compound: One question seeking one answer to two separate questions ("did you see [and | or] hear him come home?" Ambiguous or unintelligible Speculation: Asks witness to speculate or conjecture ("is it possible�") Conclusory: Question calls for witness to make legal or factual conclusion that he is not qualified to make. Asked and answered (broad leeway on cross) Misstates evidence Oppressive and harassing: Embarassing to witness or causes emotional stress Non-responsive: Answer doesn�t respond to question � either party may strike. Court has discretion not to strike if otherwise relevant and admissible.Cross-x limited to subject matter scope of direct examination, and matters affecting credibility of witness. Court has discretion to allow cross-x inquiry into additional matters. Court may call and interrogate witnesses itself, and all parties are entitled to cross-x these witnesses. Objections to be made must occur at next opportunity when jury is not present.Refreshing recollection
Memory can be refreshed by means of leading Q, writing, or anything else, either before or while testifying, at discretion of court. Writing doesn�t have to have been made by witness. Witness must testify without looking at the tool (i.e. give to witness, exam, give back to attorney, testify). O/C has right to inspect tool (and thus counsel must produce), use for cross, and introduce relevant portions into evidence. If memory is not refreshed, the hearsay exception of past recollection recorded (witness reads actual parts of document into evidence) is available. The evidence is not substantive, therefore doesn�t have to satisfy best evidence, hearsay, or authentication rules.Opinions and expert testimony
- Lay opinions: Opinion generally not allowed. Exception:
- Rationally based on a perception of the person (adequate opportunity to perceive);
- Helpful to trier of fact in determining a fact (sensory descriptions, measurements, identifications, perception of physical and mental conditions of others � but not legal conclusions, meaning of conduct); and
- About a matter within common experience and with in the scope and range of common experience (excludes extreme or refined observations such as that a car was going 123 MPH � requires expert witness).
Required if opinion relates to a matter that is sufficiently beyond the common experience (scientific, technical or specialized knowledge) such that opinion of expert would assist trier of fact in understanding the evidence or determining a fact at issue.
- Court appointed: On its own motion or motion of either party, court may enter OSC why expert shouldn�t be appointed, and request parties to submit nominations (court may select its own). Both parties can cross-x.
Expert is qualified by special knowledge, skill, experience, training or education with regards to the subject matter may testify in the form of an opinion or otherwise. Bases of testimony
- Personal observation
- Facts presented to expert at trial (including hypothetical question or assumed evidence)
- Facts introduced to expert outside of courtroom (e.g. by technicians and consultants) of the type upon which experts in his field reasonably rely (otherwise, testimony stricken).
Expert does not need to give reasons for opinion on direct, but may be required to on cross. If the expert is testifying as to what a document (e.g. x-ray) says, then the document itself is the best evidence, and best evidence rule applies. If testimony is based on statement of another, opposing party can call the declarant and cross examine him. Ultimate issue rule: Expert witness may give opinion on ultimate issue ("did testator have mental capacity to make a will?" or if criminal D did not did not have particular mental state which is an element of the crime � those are left to trier of fact). CL contra. Cross-x
Cross-x can require expert to comment on statements contained in any published treatise, periodical or pamphlet, if such document is shown to be a reliable authority by admission of the witness, other expert, or judicial notice. Such statements are admissible substantively as an exception to the hearsay rule.
- CL contra: Expert may only be examined re: published work if the work was referred to by expert (and in this case, statement is not admitted substantively), written by expert, or publication separately admitted into evidence.
Scope: Qualifications, subject matter and basis of an opinion, compensation, bias (consistently favors p �s), reputation for truthfulness, prior inconsistent statements.Hearsay
- Out of court statement
- Oral or written assertion; or
- Nonverbal conduct intended by a person as an assertion (pointing a finger, nodding a head, but not raising an umbrella, or a ship captain taking his family aboard ship � doesn�t prove captain thought ship was seaworth).
- Not made at the present hearing.
Offered to prove the truth of the matter asserted. Does not include:
- Verbal acts which show notice, knowledge, motive, good faith, or words constituting conspiracy or defamation. Operative facts, where words themselves have legal significance apart from their truth:
- Transactional words: Actual words of a K, will or deed.
- Tortious words: Actual words of libel or slander in a defamation action.
Prior statements used to impeach or rehabilitate (not offered for the truth of the matter asserted).Hearsay exceptions are based on reliability. Either the value of the statement is not dependent on the truthfulness of the statement, or the circumstances in which the statement was made indicates truthfulness. This eliminates the need for cross-examination.Non-hearsay (preferable over exception)
- Admission of party-opponent
- Direct statement or assertive conduct (conduct which reasonably supports an inference inconsistent with party�s present position) of a party-opponent.
- Adoptive: Statement of another, made in party�s presence, party�s conduct or silence manifests unequivocal adoption of truth (doesn�t include post-arrest situation, where silence is a right). Party must have been able to hear and deny, and the circumstances are such that a reasonable person would have denied the assertion of it were not true.
- Authorized: Declarant authorized by party to speak concerning the subject.
- Vicarious: Statement of agent or employee made during existence of relationship concerning matter within scope of employment.
- Coconspirator: Statement of coconspirator made during the course and in furtherance of the conspiracy. Conspirator is viewed as an agent of all the other conspirators, but conspiracy must be proved to exist.
- Predecessor in interest: Statement made by a previous owner of property, during ownership.
- Admission by party-opponent doesn�t have to be admission re: central issue � can be about a collateral issue, or even an indirect admission.
Prior statement by witness
A prior statement (hearsay) by the witness is admissible when the witness testifies at the trial and is subject to cross-x (availability), and the statement is either:
- Inconsistent with present testimony, given under oath in an adversarial context (otherwise only admissible for impeachment).
- Consistent with present testimony and offered to rehabilitate the witness� credibility after impeachment.
- Identification made of a person after perceiving him.
State of mind & present physical state
Spontaneous or natural direct and explicit statement of present (not past) mental, emotional or physical condition, usually used to prove knowledge, intent, attitude or belief of a party. Useful in self-defense cases. Examples: "I�m going to Colorado" or "I�m going to buy a sofa with a warranty" or "I hate X" or "I have a headache" or "I�m dying". Statement re: past mental state admissible only re: declarant�s will.Hearsay exceptions � unavailability not required (don�t even have to know who made the statement)
- Present sense impression
- Statement describing or explaining event or condition, made while declarant was perceiving event or condition or immediately thereafter.
- No time for reflection or deliberation.
- Declarant need not be available or even known.
- Can include someone�s verbal statement which was overheard and described by declarant.
Utterance relating to a startling event or condition, made while declarant was under the stress of the excitement caused by the event or condition. No substantial time for reflection and deliberation, i.e. statements made at police station following event. Spontaneity not required. Condition need only relate to the startling event. Res gesti: Always a wrong answer.Statements of physical condition for diagnosis or treatment
Medical history or past or present symptoms of a person (not necessarily the person seeking treatment). Made to any person for the purpose of medical diagnosis or treatment, even if in furtherance of litigation. Statement allowed to the extent that it pertains to medical treatment � excludes parts of statements which indicate fault ("he ran the red light") as opposed to explaining how injury occurred ("a car hit me").Past recollection recorded
Where witness� memory has failed to be refreshed, witness may read into evidence statements from a writing if:
- Witness once had knowledge re: matter and the writing accurately reflects his knowledge at the time the writing was made;
- Writing must have either been made by witness, under her direction, or at least adopted by her at a time when it was fresh in her memory; and
- Writing has been properly authenticated to satisfy best evidence rule (best evidence rule applies).
Writing itself is not admitted into evidence � only read into evidence, unless adverse party offers for admission. Writing itself is the evidence, therefore no cross-x.Business records
Record or report of acts or events kept in ordinary course of regularly conducted business, prepared at or near the time of the event, made by a person with personal knowledge of the information recorded. Circumstances must not indicate lack of trustworthyness (i.e. not prepared in anticipation of litigation). Record must have been prepared by either custodian or qualified person with knowledge (common law required custodian), and that person must have had a business duty to record. Authentication/Foundation: Evidence must be introduced by custodian or reliable qualified witness with personal knowledge of how the record was prepared. Absence of business entry can be used to prove nonoccurance of event or nonexistence of record if it is the type of record that was regularly reported. Example: Absence of DMV record re: driver�s license. May contain opinions or diagnosis.Public records and reports
Statements issued by public agency or official which set forth:
- The activity of the office;
- Matters observed by agency personnel which agency was under a duty to report (but not PD reports of criminal activity in criminal case � inherently untrustworthy); or
- Factual findings resulting from an investigation pursuant to authority granted by law (not against D in criminal cases).
Court has discretion to exclude due to lack of trustworthiness. Absence of public record is admissible if it is of something that normally would have been recorded, and a diligent search failed to find any records. Must be properly authenticated.Other records
Vital records (birth, death, marriage) � even if photocopied Religious organization records (baptism, marriage, etc.) if issued by a person authorized by law to do so, indicating that the ceremony was performed, if certificate issued at time of act or within reasonable time thereafter. Marriage certificate Recorded property interests Family records, such as statements made in family bibles, engravings on tombstones, genealogy charts, and inscriptions on family portraits. Statements in ancient documents (>20 yo) if found in place where it aught to be; must be introduced with some form of authentication. Example: Map to show existence of a road. Final judgments entered after trial or upon plea of guilty (not nolo contendere) to felony. Used to prove truth of matter asserted in the judgment (guilt), not of character. Market quotations, commercial publications which are generally relied upon. Reputation or judgment concerning personal or family history re: vital statistics and ancestry Reputation or judgment concerning boundaries or general history in the community Reputation as to character Statement pertaining to declarant�s memory or belief re: execution, revocation, identification or terms of declarant�s will.Learned treatises
During expert�s examination, writings established as reliable treatises, periodicals or pamphlets through W�s testimony, admission, or judicial notice may be read into evidence for use substantively or as impeachment. The treatise itself is not admitted as an exhibit.Hearsay exceptions � unavailability required
Declarant must be unavailable in good faith
- Assertion of privilege
- Refusal to testify even under contempt
- Complete lack of memory
- Absence by death, illness or injury
- Absence from court�s jurisdiction (can�t subpoena)
Testimony given at an earlier trial, deposition or proceeding, under oath, can be admitted if the party against whom testimony is offered, or a predecessor in interest:
- Was a party in earlier proceeding or predicessor in interest (even if different issues were involved and was against a different party);
- Had opportunity to examine declarant; and
- Had a motive to examine similar to the reasons now given (i.e. party was D in both former and present case).
Criminal cases require identity of parties. The fact that the evidence contained in the testimony might be gotten elsewhere is irrelevant, and no reasonable notice is required to opposing party. Declarant currently unavailable.Dying declaration
Declaration made while under imminent belief of death concerning cause or circumstances of purportedly imminent death (even if death doesn�t actually result). Can be used only in criminal homicide case (CL), or any civil case (ML). Witness must actually die, or otherwise be unavailble. "I�m dying" is also admissible as a statement of present physical condition, which doesn�t require unavailability. Other statements, such as "Why did he have to run the red light?" may be admissible as present sense impression if dying declaration won�t work.Declaration against interest
Statement of non-party which was against penal, pecuniary or proprietary interest when made (subjects self to civil or criminal liability at the time the statement was made), and a reasonable person would not have made the statement unless it was true. If statement against penal interest offered to exculpate accused, corroborating circumstances must be shown which clearly indicate trustworthiness of declaration. Statement must relate to personal knowledge � not opinion or speculation. Versus admission
- Admission is a statement of a party, but declaration is statement of nonparty
- Admission does not require nonavailability; declaration against interest does.
- Admission need not be against interest when made; declaration must be.
- Admission doesn�t require personal knowledge; declaration does.
- Same statement can�t be both admission and declaraction against interest.
Statement of own personal or family history
Birth, adoption, marriage, divorce, legitimacy, ancestry.Catch-all residual exceptionStatement offered as evidence of material fact Evidence offered must be more probative than any other evidence on point. Admission of statement must best serve interests of justice. Court must find "circumstantial guarantees of trustworthiness" equivalent to other hearsay exceptions. Advanced written notice must be given to opposing party.Multiple hearsay: A testifying as to what B said about what C said. Each layer must be separately admissible. Includes a written report about an oral statement. Credibility: Credibility of declarant may be attacked with any evidence that would be allowed if declarant was a witness. No requirement to allow opportunity for denial or explanation.