b'Evidence Outline\n\n\n\nI.  Relevance\n\nGeneral Rule: to be admitted, evidence must (1) be offered to prove a fact of consequence and (2) make that fact more or less probable. \n\nCA: fact of consequence also must be in dispute.\n\nGeneral Exception: Courts can exclude evidence if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. \n\nPolicy-Based Exclusionary Rules\n\nLiability Insurance: cannot be used to prove culpable conduct or ability to pay.  Can be used to prove any other purpose.\n\nSubsequent Remedial Measures/Repairs: cannot be used to prove culpable conduct or that product had defective design.  Does not exclude evidence offered to rebut claim of \xe2\x80\x9cno way to avoid.\xe2\x80\x9d\n\nCA: admissible to prove defective design.\n\nSettlements, Offers to Settle, & Pleas: settlements, offers to settle, offers to plea, and pleas later withdrawn, as well as related statements, inadmissible to prove liability/guilt.  In CA, also discussions during mediation.  Exceptions:\n\nNo Claim Filed or Threatened\n\nNothing in Dispute (e.g., settlement offer on undisputed promissory note).  Rationale: why encourage settlement?\n\nPayments or Offers to Pay Medical Expenses: inadmissible to prove liability for injuries but related statements are admissible, as this is a humanitarian gesture, not a settlement offer\xe2\x80\x94you are not asking for anything in return.\n\nCA: related statements inadmissible.\n\nCA: Sympathy: in civil actions, expressions of sympathy for injury or death are inadmissible, but related statements of fault admissible.\n\nSimilar Occurrences Exception: sometimes, evidence about other people, things or events is relevant when there are similarities between that evidence and the people or events at issue in instant matter.\n\nSimilar Accidents Caused by Same Event or Condition: relevant to prove causation.\n\nPlaintiff\xe2\x80\x99s Prior Claims: relevant to prove (1) pattern of fraudulent claims or (2) preexisting (medical) condition.\n\nIntent at Issue: prior similar occurrences may be relevant to draw an inference of intent from a person\xe2\x80\x99s prior conduct.\n\nRebut Defense of Impossibility: relevant to prove that claimed incident is possible, and not fabricated.\n\nComparable Sales: relevant to establish value of property.\n\nHabit: evidence of specific, frequently repeated conduct (which conveys no moral judgment) is relevant to prove that a person acted in the same way on the occasion in question.\n\nDistinguish from Character Evidence, which says something general about a person and conveys moral judgment.\n\nRoutine Business Practice: relevant to show business acted in similar way on the occasion in question.\n\nIndustrial Custom: relevant to prove standard of care.\n\nCharacter Evidence Exception: evidence that says something general about a person and conveys moral judgment, but is arguably irrelevant because it does not address specific issues, offered to prove conduct/propensity in this case.\n\nCivil Case\n\nRule: Inadmissible to prove conduct.\n\nExceptions: only FRE.\n\nCharacter at Issue: e.g., defamation, negligent entrustment, child custody, loss of consortium.\n\nSexual Assault: character evidence admissible to prove conduct in sexual assault or child molestation case.  Unavailable in CA.\n\nIf exception applicable, any method may be used to establish character.\n\nCriminal Case\n\nDefendant\xe2\x80\x99s Character\n\nBy Defendant: may offer evidence of his own good character for a relevant trait.\n\nBy Prosecution: inadmissible, unless:\n\nSexual Assault or Child Molestation\n\nCharacter Comparison: if defendant offers victim\xe2\x80\x99s character, prosecution can offer defendant\xe2\x80\x99s character for same trait.  CA: exception limited to trait of violence.\n\nDefendant Opens Door: admissible to rebut with evidence of bad character for same trait.\n\nCA: Domestic Violence/Elder Abuse\n\nVictim\xe2\x80\x99s Character\n\nBy Defendant: admissible, by Reputation or Opinion only.\n\nBy Prosecution: inadmissible unless\n\nDefendant Opens Door: may rebut.\n\nHomicide Case: if defendant offers evidence victim attacked first, prosecution can offer evidence of victim\xe2\x80\x99s character for peacefulness.  Homicide case only.  In CA, no such exception.\n\nSpecial Rule For Defendant\xe2\x80\x99s State of Mind: defendant may offer evidence of his own knowledge of the victim\xe2\x80\x99s bad character for violence for the purpose of showing that he reasonably believes in the need to use self-defense.  This shows only belief, not victim\xe2\x80\x99s propensity, so it is ok.  Any form is allowed (even Specific Acts).  \n\nForm of Character Evidence: on Direct Examination, Reputation & Opinion.  On Cross Examination, Reputation, Opinion, & Specific Acts.  If witness denies knowledge of Specific Acts, offerror not allowed to prove them.  In CA, no Specific Acts for Defendant\xe2\x80\x99s character, but for victim\xe2\x80\x99s character, Specific Acts admissible on both direct and cross.\n\nRape Shield Rule: in a case involving alleged sexual misconduct, the defendant ordinarily may not introduce evidence of the victim\xe2\x80\x99s reputation for promiscuity or the victim\xe2\x80\x99s prior sexual conduct unless offered to prove:\n\nConsent: evidence of victims sexual activity with the defendant, but only if the defense is consent\n\nWrong Guy: evidence of the victim\xe2\x80\x99s sexual activity with others, but only to prove that someone other than the defendant was the source of the physical evidence.\n\nBad Act Evidence Offered for Other Purposes: specific incidents of defendant\xe2\x80\x99s bad conduct may be offered for permissible purpose apart from propensity to commit alleged conduct, including MIMIC: Motive, Intent, absence of Mistake or accident, Identity (must be similar and unique), part of Common scheme or plan. \n\nII. Forms of Evidence\n\nWitness Testimony\n\nCompetency: witness (1) has personal knowledge, (2) must testify from present recollection, (3) be able to communicate, and (4) takes an oath.   CA: witness also must understand her legal duty to tell the truth.\n\nCA: Hypnosis: hypnotically-refreshed testimony inadmissible unless, in a criminal case, hypnotized by police using proper manner.\n\nDead Man\xe2\x80\x99s Statute: does not exist under Federal law.  In some states, in a civil suit against an estate, an interested party is not competent to testify about a transaction or conversation with a dead man.\n\nObjections to Form of Questions or Answers: must be timely and specific:\n\nLeading Question: permissible on cross, impermissible on direct unless: preliminary introductory matters, youthful or forgetful witness, hostile witness (turns on you), adverse party or someone under control of adverse party.\n\nOthers: Calls for Narrative; Non-Responsive; Cross-Examination Outside Scope of Direct; Assumes Facts Not in Evidence; Argumentative; Compound.\n\nWritings in Aid of Oral Testimony (not as evidence themselves)\n\nPresent Recollection Refreshed: witness may not read from a prepared memo, but must testify on basis of current reflection.  However, if a witness forgets something he once knew, he may be shown anything to refresh his memory.  To prevent abuse, opposing party may inspect refresher, use it in cross, and enter it into evidence.\n\nPast Recollection Recorded (hearsay exception): writing may be read to the jury as a past recollection recorded if the witness (1) once had personal knowledge, (2) now forgets, (3) the writing was either made or adopted by witness, (4) the writing was made when the event was fresh in memory, and (5) witness can attest that, when made/adopted, the writing was accurate.\n\nOpinion Testimony: inadmissible, unless\n\nLay Opinion: rationally based on witness\xe2\x80\x99s perceptions and helpful to the trier of fact\xe2\x80\x94i.e., gives the jury more information than would testimony limited to facts.  E.g., sobriety, emotions, speed.  Cannot be on expert subjects.\n\nCA: can be based on specialized knowledge, subject to court discretion.\n\nExpert Opinion: admissible if\n\nHelpful to Jury: expert is using specialized knowledge to reach a conclusion the jury could not otherwise reach.\n\nExpert is Qualified: must have specialized knowledge, however acquired (e.g. university, experience).\n\nOpinion is to Reasonable Degree of Certainty\n\nOpinion is Based on Proper Foundations: either Admitted Evidence, Personal Knowledge, or Inadmissible Evidence Reasonable Relied On by experts in the area.\n\nOpinion is Based on Reliable Principles Reliably Applied\n\nScientific Reliability Test: Daubert: weigh the following factors: (i) has the methodology been tested, (ii) are there known rates of error, (iii) has the methodology been subject to peer review, (iv) has the methodology been reasonably accepted?\n\nCA: Frye: reliability is determined only by whether opinion is based on principles generally accepted by experts in the field.  This is more limiting standard.  Unaffected by Prop. 8.\n\nGeneral Reliability Test (Science & Non-Science): Kumho Tire: must be reliable from common sense/logic perspective.\n\nLearned Treatise Exception: a learned treatise (often used by experts in aid of testimony) admissible to prove anything stated therein if it is an accepted authority in the field.  CA: only admissible to show matters of general notoriety or interest.\n\nCredibility, Impeachment, & Rehabilitation of Testifying Witness\n\nEvidence of Credibility: inadmissible, unless credibility has been called into question.  Note: this is not about relevance; credibility of a testifying witness is generally relevant.\n\nImpeachment Evidence\n\nTypes\n\nIntrinsic: witness\xe2\x80\x99s own statements at this trial.\n\nExtrinsic: evidence other than testimony given at this proceeding by witness being impeached.\n\nMethods\n\nContradiction: showing that witness made a mistake or lied about any fact she testified to during direct.  If the contradiction goes to an issue that is significant to the case, it may be proven by extrinsic evidence.  If the contradiction goes to matter that is collateral, proof is limited to intrinsic evidence, and cross-examiner is stuck with W\xe2\x80\x99s answer.\n\nPrior Inconsistent Statements: admissible to prove witness made an inconsistent statement (i.e., to impeach), but not admissible to prove the truth of the prior inconsistent statement (hearsay), unless\xe2\x80\x94under federal law\xe2\x80\x94given under oath.  Extrinsic evidence impermissible to impeach on collateral matter, but permitted for significant matter.  Foundation: to introduce extrinsic evidence, witness must be given an opportunity to explain or deny the prior inconsistent statement.  \n\nCA: Hearsay whenever offered to prove the truth, but still admissible under exception that extends to all prior statements, even if not under oath.\n\nBias, Interest or Motive: Bias may be proven by intrinsic evidence, and may only be proven by extrinsic evidence if witness given an opportunity to explain or deny. \n\nConvictions\n\nFederal\n\nAny Crime of Lying: admissible for impeachment, and no balancing of unfair prejudice even though might be used for other purpose (except for old convictions).\n\nNon-Lying Crime: felonies may be admissible to impeach, but can be excluded for unfair prejudice.  Misdemeanors not admissible.\n\nConviction (or release from prison, whichever is later) must be within 10 years of trial, unless probative value outweighs unfair prejudice.  \n\nCalifornia\n\nAll felonies for moral turpitude (lying, violence, theft, sexual misconduct, or extreme recklessness) are admissible subject to balance of probative value and prejudice.  Other felonies, and all misdemeanors, inadmissible.  Prop. 8 might make misdemeanor conviction for moral turpitude relevant.\n\nNo age limit on conviction.\n\nConviction may be proved by extrinsic evidence. \n\nPrior Bad Acts\n\nFederal: Admissible to impeach if the acts involved lying, but extrinsic evidence inadmissible.\n\nCA: inadmissible.  But Prop. 8 might make it relevant in criminal cases, if an act of moral turpitude, provable by any means.\n\nReputation/Opinion Concerning Truthfulness: admissible, and may be proven by extrinsic evidence.\n\nRehabilitation Evidence: Prior Consistent Statement: may be used to rehabilitate only if the opposing party has suggested through impeachment that the witness has a motive to lie, and the statement was made before the motive to lie arose.  At federal law, admissible both to rehabilitate and as substantive evidence that prior statement is true.  \n\nWritten (Non-Testimonial) Evidence\n\nAuthentication: the party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be\xe2\x80\x94i.e., foundation.\n\nAuthenticating Writings: if the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.\n\nTestimony by witness with personal knowledge (\xe2\x80\x9cI wrote it\xe2\x80\x9d; \xe2\x80\x9cI saw X write it\xe2\x80\x9d).\n\nProof of the Author\xe2\x80\x99s Handwriting by lay opinion (must be familiar with X\xe2\x80\x99s handwriting as a result of experience in the normal course of affairs, not as a result of preparation for the litigation), expert opinion and comparison (expert must be qualified and must compare document to a genuine sample or exemplar of X\xe2\x80\x99s handwriting), or jury comparison (trier of fact compares document to a genuine sample or exemplar of X\xe2\x80\x99s writing).\n\nSolicited Reply Doctrine: a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.\n\nAncient Document Rule: authenticity may be inferred if the document is (i) at least 20 years old (federal), (ii) is facially free of suspicion, and (iii) is found where the document would be expected.\n\nCA: must be at least 30 years old.\n\nSelf-Authenticating Documents: no foundation necessary for: official (governmental) publications, certified copies of public or private documents on file in public office, trade inscriptions and labels, acknowledged documents (basically notarized docs), commercial paper (checks, promissory notes), and certified business records \xe2\x80\x93 offered under the business records hearsay exception (must be certified by someone within the business who knows how the records are regularly made and that these documents were made in the regular way at or about the time of the event recorded).\n\nCA: trade inscriptions are not self-authenticating.\n\nAuthenticating Photos & Recordings: depends on purpose\n\nAs Demonstrative Evidence: authenticated by witness testifying, based on personal knowledge, that the photo is a fair and accurate representation or the people or objects portrayed.  No need to know photographer\xe2\x80\x99s identity.\n\nAs Silent Evidence (is itself evidence): party offering such evidence must show that (i) the camera was properly installed and working, (ii) the film was properly removed and developed, and (iii) the film has not been tampered with (most common way to show third element is by chain of custody).\n\nAuthenticating Non-Unique Items: requires chain of custody.  Little breaks in chain not problematic, big breaks potentially problematic.\n\nBest Evidence Rule: if a party seeks to prove the contents of \xe2\x80\x9cwriting\xe2\x80\x9d\xe2\x80\x94a tangible collection of data (documents, recordings, pictures, x-rays, films)\xe2\x80\x94the party must either produce the \xe2\x80\x9coriginal writing,\xe2\x80\x9d or provide an acceptable excuse for its absence.  If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony to prove the contents.\n\nWhen Applicable: (1) the writing is a legally operative document, or (2) the witness is testifying to facts learned solely from reading about them in the writing.\n\n\xe2\x80\x9cOriginal Writing\xe2\x80\x9d: duplicate admissible to the same extent as original, and thus no excuse or court approval necessary, unless there is a genuine question about the authenticity of the duplicate or it would be unfair to admit the duplicate.  Handwritten copy is not duplicate.\n\nCA: handwritten copy is admissible.\n\nValid Excuses: a party need not produce the original (or an acceptable duplicate) if the original (1) is lost or cannot be found with due diligence, (2) has been destroyed without bad faith, or (3) cannot be obtained with legal process.  In these cases, oral testimony as to contents is permitted to prove contents.\n\nException for Voluminous Documents: can be presented through a summary chart, provided the originals are admissible and available for inspection.\n\nCA: called \xe2\x80\x9cSecondary Evidence Rule\xe2\x80\x9d\n\nJudicial Notice: a court may take judicial notice of indisputable facts, which come in two forms: (i) matters of common knowledge within the court\xe2\x80\x99s territorial jurisdiction, and (ii) matters capable of easy verification by resort to unquestionable sources.  Procedure: judicially noticed facts may be taken at any time, including on appeal, and judicially noticed facts are considered conclusive in civil cases, but not in criminal cases, where they are up to jury to decide whether to accept.\n\nCA: whether requested or not, court must take judicial notice of matters generally known within jurisdiction.  Also, both civil and criminal juries must accept judicially-noticed fact.\n\nIII. Privileges\n\nState vs. Federal Court\n\nPrivilege\n\nFederal\n\nCA\n\nAttorney-Client\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nSpousal\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nPsychotherapist-Patient\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nSocial Worker - Client\n\n\xc2\xa0\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nDoctor-Patient\n\n\xc2\xa0\n\n\xe2\x88\x9a\n\nClergy-Penitent\n\n\n\n\xe2\x88\x9a\n\nCounselor-Violence\n\n\n\n\xe2\x88\x9a\n\nReporter Immunity\n\n\xc2\xa0\n\n\xe2\x88\x9a\n\n\t  Note: in a federal civil action under diversity jurisdiction, state privileges apply.\n\nAttorney-Client\n\nRule: confidential communications between attorney and client (or their representatives) made to facilitate legal services/advice will be privileged unless the privilege is waived by the client or an exception applies.\n\n\xe2\x80\x9cAttorney\xe2\x80\x9d: includes representative of the attorney\xe2\x80\x94anybody hired by the attorney to assist in representation.\n\nRule for Corporations \n\nFederal Law: applies to communications by employees if the corporation authorized the employee to communicate to the lawyer on behalf of the corporation.\n\nCA: applies if this is the natural person to speak on behalf of corporation on the matter or the employee did something for which the corporation may be held liable and is told to tell lawyer what happened.\n\nMere Witness: no privilege where employee is mere witness.\n\nWaiver: client holds privilege, and alone has power to waive.  Privilege continues after relationship ends, and even after client\xe2\x80\x99s death.\n\nCA: privilege ends upon distribution of decedent\xe2\x80\x99s estate and discharge of executor.\n\nExceptions: in furtherance of crime or fraud; when client puts legal advice in issue (e.g. in tax fraud prosecution; D defends on ground that she relied on legal advice); attorney client dispute (e.g. legal malpractice).\n\nCA: Dangerous Client: additional exception where, at time of communication, lawyer reasonably believes disclosure is necessary to prevent a crime likely to result in substantial bodily harm.  Not privileged even if, at time of trial, danger has passed.\n\nMedical Professional\n\nPsychotherapist-Patient or Social Worker-Client: communication intended by patient to be confidential and made to facilitate rendition of psychological services is privileged unless waived.\n\nCA: Doctor-Patient: Not under federal law.  Prevents disclosure of pertinent communication or information confidentially conveyed for purpose of obtaining diagnosis or treatment.  Does not cover doctors hired for litigation testimony.\n\nExceptions: (1) patient puts condition in issue; (2) professional\xe2\x80\x99 services sought to aid in crime or fraud or to escape capture  (3) malpractice cases.\n\nAdditional CA Exceptions \n\nPsychotherapist privilege does not apply if reasonable cause to believe patient is danger to himself or others and disclosure is necessary to end that danger.\n\nDoctor-patient not recognized in criminal cases or for information required to be disclosed to authorities.\n\nSpousal Privileges\n\nSpousal Communication Privilege: confidential communications between spouses will be privileged, so long as the communication was made while they were still legally married, even if at time of litigation, they aren\xe2\x80\x99t married.  May be waived only by both spouses (one is not enough).\n\nSpousal Immunity (Spousal Testimony Privilege): in a criminal case, current spouse cannot be compelled to testify against spouse about any matter that occurred before or during the marriage (so long, of course as they are still married at the time of trial).  Witness (spouse) holds the privilege, and may waive it unilaterally and testify.\n\nCA: applies in both civil and criminal, need not assert privilege on the stand. \n\nExceptions to Both Privileges: do not apply to communications or acts in furtherance of a crime, or destructive of the family unit, or in action involving domestic violence/child abuse.\n\nAdditional CA Privileges\n\nCounselor and Victim of Sexual Assault or Domestic Violence\n\nClergy-Penitent\n\nImmunity from Contempt of Court to News Reporter\n\nIV. Hearsay\n\nRule: absent an exception, an out of court (this court in this case) statement (written, oral, or assertive) by a person offered to prove the matter of the truth asserted is hearsay and inadmissible.\n\nFour Principal Categories of Non-Hearsay Purposes\n\nImpeachment: a prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement. \n\nVerbal Acts (Legally Operative Words): Words with independent legal significance (when the law attaches rights and obligations to certain words simply because they are said, regardless of whether they are true or believed or intended to do something) are not hearsay.  E.g. \xe2\x80\x9cI accept the offer,\xe2\x80\x9d words of defamation, \xe2\x80\x9cyou can drive my car for the weekend.\xe2\x80\x9d\n\nTo Show Effect On Person Who Heard or Read Statement: a statement that is relevant simply because someone heard it or read it is not hearsay.  Thus statements that put a person on notice of a danger may be used to prove notice, but not to prove that there was in fact a danger.\n\nCircumstantial Evidence of Speaker\xe2\x80\x99s State of Mind: a statement that unintentionally reveals something about the speaker\xe2\x80\x99s state of mind is not hearsay.\n\nExclusions From Definition of Hearsay (even though being used to prove truth of matter asserted).  Tip: excluded from definition because in each, the declarant is present in court.  In CA, all exclusions are considered exemptions.\n\nStatement of Party Opponent: any statement by party or by person whose statements can be attributed to party offered by party opponent.  No limits for personal knowledge, legal conclusions, etc.\n\nDistinguish Declarations Against Interest, which must, at time made, be against interest, may be made by any party, and are an exception, not exclusion, to hearsay.\n\nVicarious Admissions: admissible if made by (1) authorized agent/spokesperson; (2) agent/employee, if it concerns a matter within the scope of the agency or employment, and was made during the agency or employment, regardless of authority to speak; (3) other, and was adopted, or (4) co-conspirators if made in furtherance and course.\n\nCA: employee statement is admissible admission of employer only where employer is liable for employee\xe2\x80\x99s accompanying conduct, e.g., employee\xe2\x80\x99s negligence is basis of employer\xe2\x80\x99s liability.\n\nPrior Statements of Current Trial Witnesses\n\nPrior Inconsistent Statement if made under oath during formal proceeding.  In CA, admissible however made.\n\nPrior Consistent Statement used to rebut an accusation of a motive to lie, and made before motive to lie arose.\n\nStatement of Identification made after perceiving the person.\n\nExceptions to Hearsay Rule: may be offered to prove truth of the matter asserted\n\n\n\nException\n\nDeclarant\n\nFormer Testimony\n\nMust Be Unavailable\n\nStatement Against Interest\n\n\n\nDying Declaration\n\n\n\nExcited Utterance\n\nAvailability Irrelevant\n\nPresent Sense Impression\n\n\n\nDeclaration of Then-Existing Physical or Mental Condition\n\n\n\nStatement for Purpose of Medical Treatment or Diagnosis\n\n\n\nBusiness and Public Records, Judgment of Conviction\n\n\n\n\n\nGround of Unavailability\n\nFederal\n\nPAILS\n\nCA\n\n\n\nPrivilege\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nAbsence from jurisdiction\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nIllness or death\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nLack of memory on subject\n\n\xe2\x88\x9a\n\n\xc2\xa0\n\nStubborn refusal to testify despite order\n\n\xe2\x88\x9a\n\n\xc2\xa0\n\nTotal Memory Loss\n\n\xc2\xa0\n\n\xe2\x88\x9a  \n\nRefusal to Testify Out of Fear\n\n\xc2\xa0\n\n\xe2\x88\x9a  \n\n\n\nDeclarant\xe2\x80\x99s Former Testimony: where declarant (need not be party) is unavailable, testimony given by declarant in an earlier proceeding or deposition can be admissible:\n\nIn Any Case: where party against whom now offered was party earlier and had, during earlier proceeding, opportunity and similar motive to exam.\n\nIn CA, additional exception when former testimony is offered today against person or successor-in-interest to person who offered it previously.  In such a case, no requirement for opportunity or motive. \n\nIn Civil Cases Only: party against whom now offered had a predecessor in interest with opportunity and similar motive to exam.  Federal law requires privity-like relationship, CA does not, and only requires similarity.\n\nCA: deposition testimony also admissible if declarant >100 miles from courthouse (i.e., addition ground for unavailability).\n\nStatements Against Interest: where declarant is unavailable, statement is admissible if, when made, was against the declarant\xe2\x80\x99s financial or penal interest.  However, in a criminal case, statement against penal interest offered to exculpate defendant must be supported by corroborating circumstances.\n\nCA: interests include social interests.\n\nDying Declaration: where declarant is unavailable, statement by one believing he is about to die (he need not actually die), describing cause or circumstance leading to death, is admissible in any civil case, but not in any criminal case except homicide.\n\nCA: applies in both civil and criminal, and declarant must be dead.\n\nExcited Utterance: regardless of availability, statement concerns a startling event, and was made while the declarant was still under the stress caused by the event (even if some time has passed).\n\nPresent Sense Impression: regardless of availability, statement describing event or condition made while or soon after perception.\n\nCA: narrower: only admits statement explaining conduct of declarant made while engaged in that conduct.\n\nDeclaration of Then-Existing Physical or Mental Condition: regardless of availability, a (1) contemporaneous statement (2) concerning the declarant\xe2\x80\x99s then-existing physical condition or state of mind, including intent or future plans, but (3) not including a statement of memory or belief about a past condition.\n\nStatements for Purpose of Medical Treatment or Diagnosis: regardless of availability, statement made (by anyone) to a medical professional concerning present symptoms, past symptoms, or general cause of the medical condition, for the purpose of diagnosis or treatment.  Does not include statements about fault or identity of wrongdoer.\n\nCA: narrower: admits only statements if made by minor describing act of child abuse or neglect.\n\nBusiness Records Exception: regardless of availability, (1) made in the regular course of business, (2) contemporaneously (at or about the time of the event recorded), (3) the business regularly keeps such records, and (4) the contents of the statement consist of either information observed by employees of the business, or a statement that falls within some other hearsay exception.  Note: if report contains statement, must be statement of person with a business duty to transmit such matters to the reporter.  For police reports, witnesses are under no business duty to convey statements.  Records prepared in anticipation of litigation do not count.\n\nCA: Where business records include opinions or diagnoses, courts will admit simple, but not complex, opinions or diagnoses.\n\nPublic Records Exception: regardless of availability, admissible if: (1) describes activities and policies of the public office; (2) describes matters observed pursuant to duty imposed by law, except, in criminal cases, for police reports; or (3) contains fact-findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy, except, may not be used in criminal cases.  However, in both FRE & CA, statements contained within records must meet separate hearsay exception.\n\nCA: broader: admits record made by public employee if making record was within scope of her duties, made at or near time of event described, and circumstances show trustworthiness.  Thus admits police reports, and factfindings, even in criminal cases.\n\nJudgments of Conviction: regardless of availability, admissible to prove any fact essential to that judgment.  In criminal case, when offered by prosecution for any purpose other than impeachment, a judgment against person other than the accused is inadmissible.\n\nCA: exception applies only in civil, not criminal, cases.  But, certified copy of conviction is admissible under public records exception, in both civil and criminal cases.\n\nCatch-All: if not covered by specific exception, federal law permits if: trustworthy, necessary, and notice given to adversary.\n\nAdditional CA Hearsay Exceptions\n\nStatement Describing Infliction or Threat of Physical Abuse: where declarant is unavailable, made at or near the time of injury or threat and describing or explaining the infliction or threat of injury in writing or recorded or made to police or other professionals and circumstances seem trustworthy.\n\nDeclaration of Past Physical or Mental Condition (including intent): where declarant is unavailable, to prove condition if that condition is at issue in the case.  No need for seeking medical care.\n\nHearsay & Confrontation Clause: even if otherwise admissible under a hearsay exception, in criminal cases, the 6th Amendment requires that the defendant be confronted with the witnesses against him; prosecution may not offer testimonial hearsay in violation of D\xe2\x80\x99s right to cross-examine declarant.  \xe2\x80\x9cTestimonial\xe2\x80\x9d includes grand jury testimony, statements in response to police interrogation if the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution (i.e., investigation), and police reports.  Does not include statements in police interrogation whose primary purpose is the enable police assistance to meet ongoing emergency, or business records.\n\nV. California Constitutional Rule in Criminal Cases: Prop 8: All relevant evidence is admissible in a criminal case even if objectionable under the Evidence Code.  \n\nRelevance: Prop. 8 only applies to relevant evidence, so if evidence is not relevant for any reason (e.g., character), Prop. 8 is inapplicable and does not permit evidence.  However, impeachment evidence of almost any kind is relevant, and thus Prop. 8 can override its otherwise inadmissibility.\n\nExceptions (i.e., objections still viable in criminal cases)\n\nExclusionary Rules Under U.S. Constitution\n\nHearsay\n\nPrivilege\n\nLimits on Character Evidence\n\nSecondary Evidence Rule\n\nSection 352: unfair prejudice substantially outweighs probative value\n\n\n\n\n\nEssay Tips\n\n\n\n1.  Always address relevance for every item of evidence., even if obvious.  Address even obvious issues.\n\n2.  Raise and resolve as many objections as you can to each item of evidence, even if told to assume all objections have been raised.  Ask to strike for improper form.\n\n3.  Always keep general exception for unfair prejudice in mind, especially where evidence admissible for one thing but not another.\n\n4.  For any exclusionary rule, evidence may be used for any purpose other than that specifically excluded.\n\n5.  Always mention all possible exceptions for hearsay that apply to a given statement.\n\n6.  If no jurisdiction is provided, only address FRE.  Address CA only if asked.\n\n7.  On CA questions: raise all objections under Evidence Code; for each objection, mention if Prop. 8 overrules the objection or if exception applies; always balance for unfair prejudice.\n\n8.  If the question asks about introduction of evidence regarding conduct/events other than conduct/events in this case, it is a relevance issue.\n\n9.  Sometimes, a potentially hearsay statement must be broken in two, as one hearsay exception applies to one part, but the other part requires a different hearsay exception.'