Subject Outline Mnemonic - Follow RECIP(e) H to decide if the evidence is admissible.
Inadmissible Relevant Evidence - I like P-NOIR but it's still inadmissible.
NEGOTIATION admissions made by criminal defendant during unsuccessful plea bargaining
OFFERS of compromise or settlement (except in conjunction with offer to pay medical expenses)
INSURANCE introduced to prove fault or deep pockets
REMEDIAL measures taken after event
Rule 403 - Exclusion of Relevant Evidence - The UMP doesn't have to let the evidence IN
MISLEAD the jury
PREJUDICIAL effect on jury
confusion of ISSUES
NEEDLESS presentation of cumulative evidence
Self-Authenticating Documents - OIL CANS are self-authenticating.
INSTRUMENTS- negotiable and commercial paper LABEL, tag or trademark affixed on item in regular course of business
CERTIFIED public documents (by clerk of agency or court that had custody)
ACKNOWLEDGED documents signed before notary, swore to truth, content and execution (except wills)
NEWSPAPERS and periodicals with reasonably wide circulation
SEALED OFFICIAL publications issued by public authority
Non-Hearsay Requiring Testimony - The "4 Priors" aren't hearsay provided the declarant testifies.
1. Prior recorded recollection
2. Prior out of court identification
3. Prior consistent statement
4. Prior inconsistent statement given under oath and subject to perjury
Non-Hearsay Regardless of Testimony - SANE evidence is not hearsay so it's admissible.
STATE of mind
ADMISSION by party opponent
EFFECT on listener
Introduction of Character Evidence at Civil Trials -
Character evidence can be introduced in a civil trial after Chopping WEEDS.
CHILD custody cases
Introduction of Character Evidence at Criminal Trials - MIMIC the criminal before introducing character evidence.
MODUS operandi or preparation of plan
INTENT or knowledge, absence of mistake or accident
COMMON scheme or plan
Hearsay Exceptions - Admissibility of Business Records - Business records feature the sound of DRUMS.
DURING (written statement made DURING or near time of matter in issue)
ROUTINE (systematic practice of maintaining/storing this type of record)
UNTRUSTWORTHY (admissible unless circumstances indicate lack of trustworthiness)
MADE in ordinary course of business
SOURCE of business record has personal knowledge of matter recorded
Relevant if evidence has any tendency to make any legally relevant fact more or less probative than it would be without the evidence.
o Must relate to time, event, or person in controversy in the present litigation.
o “Of consequence”: Look at the substantive law in the fact pattern and determine whether the fact is relevant.
o IN CA: The fact of consequence must also be in dispute.
o “More or less probable”: This is a matter of common sense – see if the outcome may change
EXCLUSION OF EVIDENCE FOR POLICY REASONS
Liability Insurance: Evidence of liability insurance is inadmissible to prove culpable conduct, such as negligence or the defendant’s ability to pay judgment.
Subsequent remedial measures or repairs: Evidence of safety measures or repairs after an accident is inadmissible to prove culpable conduct.
Settlements, offers to settle, and pleas:
o Civil Cases: Evidence of settlements, offers to settle, and related settlements are inadmissible to prove liability or fault.
o Criminal cases: Pleas, offers to plea, and related statements are inadmissible to prove guilt.
o CA only: This also applies to discussions during the mediation proceedings.
Payments or offers to pay medical bills: Evidence of payment or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question (there still has to be a dispute).
“Expressions of Sympathy”: In CA, expressions of sympathy related to suffering or death of an accident victim are inadmissible in CIVIL actions; however, statements of fault made in connection with the expression are not excluded.
THE FOUR QUESTION APPROACH:
1. What is the purpose for which the character evidence is being offered?
2. What method or technique is being used to prove character?
3. Is this a civil or criminal case?
4. Does the evidence prove a pertinent character trait?
CHARACTER EVIDENCE IN CIVIL CASES: Character evidence is inadmissible to prove conduct in a civil case unless the claim is based on sexual assault or child molestation. In these two exceptions, the defendant’s prior acts of such conduct are admissible to prove conduct.
CHARACTER EVIDENCE IN CRIMINAL CASES: The prosecution cannot initiate evidence of the defendant’s bad character to show that s/he is more likely to have committed the crime (can bring evidence of bad character for other reasons - see below). Also, the accused can introduce evidence of his good character.
RELIABILITY OF REAL EVIDENCE
Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact, and may be direct, circumstantial, original or prepared (demonstrative).
LEGAL REQUIREMENTS FOR ADMISSIBILITY:
o Authentication: The piece of evidence must be acknowledged as what the proponent claims it to be, either by:
• Testimony: from a witness that she recognizes the evidence as what the proponent claims it is; or
• Verification that the evidence has been held in a substantially unbroken chain of possession.
o Condition of the Object: In cases where the condition of the evidence is important, the evidence must be shown to be in substantially the same condition it was originally in at the time of trial.
o Balancing Test - Legal Relevance: Some secondary reason may outweigh the need to admit the real evidence
TYPES OF REAL PROOF: Exhibition of injuries Exhibition of child in paternity suit; Reproductions and explanatory evidence: pictures, diagrams, maps; Demonstrations; Jury view of the scene; Maps, Charts, Models
RELIABILITY OF DOCUMENTARY EVIDENCE
Documentary evidence must be relevant in order to be admissible. In the case of writings, authentication is an element of relevancy.
AUTHENTICATION: A writing or any secondary evidence of its contents will not be received into evidence unless it is authenticated by proof that shows the writing is what the proponent says it is.
AUTHENTICATION OF ORAL STATEMENT: When a statement is admissible only if stated by a particular party (like an admission by a party); authentication as to the identity of the speaker is required.
SELF-AUTHENTICATING DOCUMENTS: “Prove Themselves”
BEST EVIDENCE RULE
Applies only when the evidence is being offered to prove a writing’s contents. The rule requires the original writing be produced, but is subject to several exceptions:
o Writing: Defined as documents, videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data.
o Original: Computer printouts, public documents which are certified.
o Duplicate: An exact copy, like a carbon copy, is admissible (as an original would be), unless its authenticity is in dispute or unfairness would result.
Applies to two types classes of situations:
o When the writing is a legally operative or dispositive instrument; and
o When the knowledge of the witness concerning a fact results from having read doc
When the rule does not apply:
o When the fact to be proven exists independently of the writing;
o When the writing is collateral to the litigated issue (minor importance of doc.);
o Summaries of voluminous records; or
o Public records: certified copies of public records or testified to as correct are not subject to this rule.
Secondary Evidence: When the proponent cannot produce the original in court, s/he may offer the evidence of its contents if an acceptable reason is given
TESTIMONIAL EVIDENCE: COMPETENCY OF WITNESSES
COMPETENCY: Who can testify? (4 requirements)
1. Personal knowledge:
o Has perceived the facts with one or more of her senses; and
o A reasonable juror believes the witness perceived the fact.
2. Present recollection: Witness must testify from a present recollection, not from some past record now forgotten.
3. Communication: Witness must be able to relate perception either directly or through an interpreter.
4. Sincerity: Witness must take an oath or affirmation to tell the truth
OBJECTIONS TO FORMS OF TESTIMONY AND QUESTIONS: Remember that there is a need for timely and specific objections or else they are waived.
WITNESS’ USE OF DOCUMENTS DURING TESTIMONY:
o Refreshing Recollection: Anything can be used to refresh a party’s recollection, but this means the opponent may inspect and offer into evidence if that document is used to refresh the witness’ recollection. You cannot read from it while testifying! There is no hearsay problem because the writing is not being offered into evidence.
o Past recollection recorded: When a witness has insufficient recollection to testify fully and accurately, a writing made or adopted by the witness when the matter was fresh in his mind may be "read into evidence" but may not be received as an exhibit unless offered by an adverse party.
Past Recollection Recorded Elements
1. Witness once had personal knowledge of the facts
2. The witness now has insufficient recollection to testify as to the matters contained in the document
3. The document was made by the witness or under the witness's direction, or was adopted by the witness
4. The document was written or adopted at a time when the facts were fresh in the witness's memory
5. The document was accurate when made
a. The document cannot be read aloud in court baoud in court, because it is hearsay
OBJECTIONS TO FORMS OF TESTIMONY & QUESTIONS
OBJECTIONS TO FORMS OF TESTIMONY & QUESTIONS
1. Calls for Narrative: Open-ended questions where the witness could go on a tangent.
2. Unresponsive: Does not answer the question, or answers beyond the scope.
3. Usually no leading on direct: Questions that suggest an answer, can be used:
o On cross;
o To elicit preliminary or introductory matter;
o When the witness needs aid to respond (because of loss of memory, immaturity, physical or mental weakness); and
4. Leading ok on cross: Must stay within the scope of what was asked on direct, otherwise it becomes a direct exam and then no leading will be permitted in that line of questions.
5. Leading ok on direct exam if with an adverse witness, a hostile witness, or a witness needing help.
6. Assumes facts not in the evidence.
7. Argumentative: Really means the ‘question’ is not truly a question; rather, it is making a comment to the jury and not actually seeking an answer.
8. Compound: Asking two questions in one - this tends to confuse the jury.
OPINION TESTIMONY: LAY OPINION
OPINION TESTIMONY: LAY OPINION
o Cannot be based on scientific or specialized knowledge;
o Must be rationally based on a witness’s perception; and
o Helpful to a clear understanding of his testimony or to determine a fact at issue.
Situations where lay opinion is admissible:
o Matters involving sense recognition;
o The state of emotion of a person;
o The value of his own services;
o The intoxication of another.
o The general appearance or condition of a person;
o Voice or handwriting identification;
o The speed of a moving object;
o The value of his own services; and
o The rational or irrational nature of another’s conduct.
Situation where lay opinion is not admissible: with regards to whether one acted as an agent or whether a contract/agreement was made.
OPINION TESTIMONY: EXPERT OPINION
Experts may present an opinion or conclusion.
5 Requirements (Same 5 apply in CA)
1. Helpful to the jury: The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact.
2. Qualified: Possesses the special knowledge, skill, experience, training, or education matching the subject of the opinion.
3. Degree of certainty: Expert possesses reasonable probability regarding his opinion.
4. The opinion is supported by a factual basis (which have three sources):
o Personal observation;
o Admitted evidence: Facts made known to the expert at trial; and
o Inadmissible evidence reasonably relied upon: Facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the field.
5. Reliable principles reliably applied:
o Daubert/Kumho Standard - Four tests for reliability:
o In CA: Fry/Kelly Standard used:
LEARNED TREATISE HEARSAY EXCEPTION: It is admissible to prove anything stated therein if it is an accepted authority in the field. In CA: only admissible to show matters of general notoriety or interest
EVIDENCE OF WITNESS CREDIBILITY
EVIDENCE OF WITNESS CREDIBILITY
Impeachment: The casting of an unfavorable reflection on the veracity of a witness. This can occur by either party (including the party calling the witness).
Accrediting or bolstering testimony: A party may not bolster / accredit the testimony of a witness until a witness has been impeached. An exception allows a party to prove the witness made a timely complaint or a prior statement of identification.
Ways to impeach a witness:
o On cross or direct: By eliciting facts from witness that discredit his own testimony;
o Extrinsic evidence: Putting other witnesses on the stand who will introduce facts discrediting the testimony;
o Foundation: Certain grounds for impeachment require that a foundation must be laid during cross examination before extrinsic evidence can be introduced; other grounds allow impeachment only by cross and not by extrinsic evidence; and
o Evidence to support credibility: Inadmissible unless credibility is attacked first.
Three step approach to admissibility of impeachment evidence:
1. Is the source of impeachment extrinsic evidence or testimony at this proceeding of the witness being impeached;
2. If it is extrinsic, is it admissible given an impeachment technique; and
3. Are there any other foundation requirements?
Any evidence other than testimony given at this proceeding by the witness who is being impeached.
o Testimony of other witnesses
o Prior statements of the witness who is now testifying.
PRIOR CONSISTENT STATEMENTS
PRIOR CONSISTENT STATEMENTS
Not hearsay; considered admissible for all purposes if made before a bribe or before an inconsistent statement - otherwise it will be considered inadmissible.
Usually, prior inconsistent statements are considered hearsay and are only allowed for impeachment purposes.
IF however, the statement was made under oath at a prior proceeding, it is admissible non-hearsay and may be admitted as substantial evidence of the facts stated.
IMPEACHMENT BASED ON CONTRADICTION
Extrinsic evidence is inadmissible to contradict a collateral matter.
Collateral matter: A fact not material to the issues in the case that says nothing about witness credibility other than just to contradict that witness
IMPEACHMENT BASED ON PRIOR INCONSISTENT STATEMENTS
A party may show on cross-exam or with extrinsic evidence that the witness has, on another occasion, made a statement inconsistent with his present testimony; however, a proper foundation must be laid and the statement must be relevant to an issue in the case.
o Foundation for extrinsic evidence: Only if the witness is at some point given an opportunity to explain or deny the statement.
o The exception to this requirement: Inconsistent statements by a hearsay declarant may be used to impeach despite a lack of foundation when the interests of justice require.
o The evidentiary effect of prior inconsistent statements: Usually prior inconsistent statements are hearsay, thus only admissible to impeach (but see below).
o PIS of a witness who testifies at a prior proceeding: Inadmissible unless given under oath at a trail or a deposition – then it will qualify as not being hearsay and is admissible to prove the truth of the matter asserted.
o PIS to impeach on a collateral matter: Inadmissible.
o In CA: It is hearsay if offered to prove the truth of the matter asserted, but admissible under the exception which extends to all inconsistent statements of witness, whether or not under oath
IMPEACHMENT BASED ON CRIMINAL CONVICTION
Crimes involving dishonesty: all convictions (both felony and misdemeanors) for crimes of false statements (perjury, forgery, fraud) are admissible. NO balancing of unfair prejudice
o Exception: Unless they are more than ten years old.
o In CA: All felonies involving “moral turpitude” are admissible, but courts have to do the balancing test.
Felony not involving dishonesty: A witness may be impeached by a felony that does not involve dishonesty, but the court has the discretion to exclude it if:
o Criminal Defendant: The witness being impeached is the accused, and the prosecution has not shown that the conviction’s probative value does not outweigh its prejudicial effect.
o All other witnesses: The court determines whether to allow based on the same balancing test.
o In CA: Felonies not involving moral turpitude are inadmissible in CA (because they are not considered relevant under Prop. 8).
Misdemeanors that don’t involve false statements: Impermissible to impeach
Extrinsic evidence requirement: If admissible, it may be proved with extrinsic evidence; balancing test applies if conviction over 10 years old.
Juvenile, Remote, Constitutionally defective convictions: Not admissible.
IMPEACHMENT BASED ON SPECIFIC INSTANCES OF MISCONDUCT
These are non-conviction misconducts (aka “bad acts”), which have a bearing on truthfulness.
o Admissible to impeach in both criminal and civil cases if the acts involve lying.
o Extrinsic evidence: Not allowed – but can elicit on cross-examination.
o IN CA: Extrinsic evidence of bad acts is inadmissible under CEC, but Prop. 8 makes extrinsic evidence admissible in a criminal case if it is relevant, meaning the bad act must then be one of moral turpitude (lying, violence, theft, extreme recklessness, sexual misconduct). (Both cross exam and extrinsic permitted subject to balancing).
A witness who has been impeached may be rehabilitated by the following methods:
o Prior consistent statements: Allowed if witness’ testimony has been attached with an express / implied charge the witness is lying / exaggerating because of some motive.
o Good reputation for truthfulness: When the witness’s character for truth and veracity has been attacked other witnesses may be called to testify to the good reputation for truthfulness.
o Explanation on redirect: May explain / clarify facts brought out on cross.
Communication between an attorney and her client made during a professional consultation is privileged from disclosure.
1. Attorney-client relationship: Client must be seeking professional services of the attorney at time of communication. Includes disclosures made before s/he accepts or declines
2. Confidential: No intention to disclose to third parties (objective standard).
3. Client holds the privilege: S/he alone may waive it. An attorney may, however, assert the privilege while not in the presence of the client.
4. Privilege applies indefinitely: Continues after representation and after the client’s death.
5. Applies to attorney, client, and any representatives of either party.
Exceptions - when the privilege does not apply:
o When the attorney’s services were sought to aid in the planning / commission of what the client knows / should know is a crime or fraud;
o Communications relevant to an issue between parties claiming rights though the same deceased client; and
o Communication relevant to an issue of breach of duty in a dispute between the attorney and the client.
o CA (extra exception): N/A where lawyer reasonably believes disclosure is necessary to prevent crime likely to result in death or substantial bodily harm
CA ONLY unless diversity case in federal court. Privilege belongs to the patient and s/he may decide to claim or waive.
3 Elements to allow the assertion of privilege:
1. A professional relationship exists;
2. The information is acquired while attending the patient in the course of treatment;
3. The information is necessary for treatment (nonmedical information discussed is not privileged).
When the privilege does not apply:
• The patient puts his physical condition at issue (example: personal injury case);
• The physicians assistance was sought in a wrongdoing (example: commission of a crime or tort);
• The communication is relevant to an issue of breach of duty in a dispute between the physician and the patient (malpractice);
• The patient agreed by contract; or
• It is a federal case applying the federal law of privilege.
• Criminal cases or to information that the doctor is required to report to a public office (example: gun shot or a communicable disease).
PSYCHOTHERAPIST-SOCIAL WORKER/ PATIENT PRIVILEGE
Communication between the psychotherapist and patient, or licensed social worker and client, is privileged when:
o The patient/client intended it to be confidential;
o It was made to facilitate rendition of the professional and psychological services; and
o Privileged in civil and criminal unless waived by patient/client.
CA exception: Privilege does not apply if the psychotherapist has reasonable cause to believe the patient is in danger to himself or others, and that disclosure is necessary to end the danger.
There are two distinct privileges:
o A spouse may not be called to testify by the prosecution against their spouse on trial in criminal case, nor can the spouse be compelled to testify against the other spouse in any criminal proceeding (even if the spouse is not the defendant in the case, for example, in grand jury proceedings).
o There must be a valid marriage for this to apply, thus the privilege ends at divorce.
o CA applies in civil and criminal cases (a witness spouse cannot even be called to the stand).
Privilege for confidential marital communications:
o In any civil case or criminal case, the confidential communications between husband and wife are privileged.
o The marriage must be valid and exist at the time of the communication in question.
o Communications after divorce are not privileged.
o Must be made in reliance upon the intimacy of the marital relationship.
When neither privilege applies: Actions between the spouses, or in cases involving crimes against the testifying spouse or either spouse’s children
An out of court statement, offered in court, to prove the truth of the matter stated.
Statement: Can be a verbal or written expression of a person or any conduct that is intended to communicate (assertive conduct).
Out of court: Not made in this particular trial.
Truth of the matter asserted - 3 step approach:
o Find the statement (on the exam it is usually in parenthesis if it is a verbal expression).
o Find what the statement allegedly proves.
o Then, given what it allegedly proves, would the jury be misled if the out-of-court speaker was lying or mistaken?
o If yes then it is hearsay; if no, then it is not hearsay.
HEARSAY OBJECTIONS: GENERAL
Even if the evidence is hearsay under the basic definition, the FRE has created exceptions that will still allow such evidence to be admissible if it falls under one of the following exceptions:
1. ADMISSION OF A PARTY OPPONENT: An admission or act that amounts to a prior acknowledgment of one of the relevant facts by one of the parties, which is offered by the other party.
2. PRIOR INCONSISTENT STATEMENTS BY WITNESS - Not hearsay if:
o Prior inconsistent statement given under oath at trial or deposition.
o In CA, these statements are hearsay if they are offered to prove the truth of the facts asserted, but admissible under an exception, which extends to ALL inconsistent statements, whether or not under oath.
o Prior consistent statement of witness now testifying at trial: Offered to rebut the charge of recent fabrication or improper influence or motive. (Same rule in CA, except it is not considered an exemption in CA just an exception to hearsay).
o Statements of identification of a person made after perceiving the person (i.e. “that is the guy who robbed me”).
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- UNAVAILABILITY
“UNAVAILABILITY”: A declarant is unavailable if s/he:
o Is exempt from testifying based on privilege;
o Dead or sick;
o Refuses to testify;
o Proponent of the statement cannot procure the declarant’s presence by process or other reasonable means; or
o Declarant’s memory fails on the subject of the statement.
CA: The declarant has to suffer total memory loss. A declarant can refuse to testify out of fear.
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- FORMER TESTIMONY EXCEPTION
The testimony of a now unavailable witness given at another hearing or deposition is admissible if:
o The party against whom the testimony is offered (or in a civil case, the party’s predecessor in interest or privity-type relationship was a party in the former action) was a party in the former action.
o CA Civil cases: A party against whom testimony is now offered was not a party in the earlier proceeding by a party in that early proceeding has an opportunity to do so and the interest to conduct the exam is similar to the interest of the party against whom the testimony is now offered (meaning there is no privity requirement in CA).
o Same subject matter.
o Testimony was given under oath.
o The party against whom the testimony was offered had the opportunity to examine that person and the motive to conduct the exam that is similar to the motive the party has now.
o CA ONLY: The former testimony is offered against the person who offered it in evidence on his or her own behalf in the earlier proceeding, or against a successor in interest of such a person.
o Grand jury testimony: Not allowed under this exception because there is no opportunity for cross-examination in these proceedings
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- RELATED CA LAW
Deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable for trial or lives 150+ miles from the courthouse. Otherwise the former testimony exception DOES NOT APPLY to deposition testimony given in the same case in which the hearsay is offered at trial.
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- STATEMENTS AGAINST INTEREST (DECLARATIONS)
Hearsay statement is admissible if, at the time it was made, it was against the financial interests of the declarant or would have subjected him to criminal liability.
o If the statement is offered to exculpate the accused (i.e., to show that someone else committed the crime), there must be corroborating evidence to admit.
o Can be made by anyone (unlike party admissions).
o Statement: The exception covers only those remarks that inculpate the declarant, not the entire extended declaration (if there is more).
o CA ONLY: Statement against social interests is admissible.
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- STATEMENTS OFFERED AGAINST A PARTY WHO PROCURE THE DECLARANT’S UNAVAILABILITY
A statement from a person who is now unavailable is admissible when offered against a party who has engaged or acquiesced in wrong doing that intentionally procured the defendant’s unavailability.
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT- DYING DECLARATIONS
In a homicide or a civil action only:
o The declarant must believe his death is imminent (does not actually have to die though).
o The statement concerned the cause or circumstance of what he believed to be his impending death.
o CA: Declarant MUST BE DEAD.
HEARSAY EXCEPTIONS: PRESENTLY UNAVAILABLE DECLARANT-STATEMENTS OF PERSONAL OR FAMILY HISTORY
Statements by a now unavailable declarant concerning births, marriages, divorces, are admissible to prove that the declarant is a member of the family in question or intimately associated, and that the statements are based on the declarant’s personal knowledge of the facts or the family’s reputation.
HEARSAY EXCEPTIONS: UNAVAILIBILITY OF DECLARANT IMMATERIAL
PRESENT STATE OF MIND: A statement of a declarant’s then existing state of mind, emotion, sensation, or physical condition is admissible
PRESENT SENSE IMPRESSIONS: If the statement is explaining a condition or event made while the declarant was perceiving it or immediately thereafter.
“THE O.J. EXCEPTION” (CA ONLY): Statements describing infliction or threat of physical abuse (there may be a confrontation issue). If they are made at or near a time of injury or threat, by unavailable declarant, describing or explaining the infliction or threat, in writing, or recorded or made to police or a medical professional, under trustworthy circumstances.
EXCITED UTTERANCE: An out of court statement relating to a startling event made while under the stress of the excitement of the event (before the declarant has time to reflect on it).
DECLARATIONS OF THEN EXISTING PHYSICAL OR MENTAL CONDITIONS: Admissible to show the condition or statement of mind, but not admissible to prove the fact remembered or believed.
PAST RECOLLECTION RECORDED: If the witness’ memory cannot be revived, a party may introduce a memo that the witness made at or near the time of the event
HEARSAY EXCEPTIONS: UNAVAILIBILITY OF DECLARANT IMMATERIAL- BUSINESS RECORDS
Any writing or record made as a memo of any act or transaction is admissible as proof of that act or transaction, but must:
o Be a record of events, conditions, diagnosis, or opinion: must appear that it was customary to conduct that sort of entry (note: self-serving accident reports prepared for litigation are usually inadmissible);
• CA does not mention or refer to opinions or diagnosis, but courts will still admit simple opinions and diagnosis.
o Have kept in the course of regularly conducted business activity;
o Have been made at or near the time of matters described;
o Have been made by a person with knowledge of the facts in that record: person knowledge of the entrant of the record or within knowledge of someone whose duty it was to transmit to the entrant;
o Be the regular practice of the business to make such record; and
o Be accomplished by the custodian of the record either testifying to its or certifying in writing (Authentication)
HEARSAY EXCEPTIONS: UNAVAILIBILITY OF DECLARANT IMMATERIAL- JUDGMENTS OF PREVIOUS CONDITIONS
A hearsay statement describing a felony conviction (like a copy of the conviction) is admissible in both civil and criminal cases to prove any fact essential to judgment. Note: In CA the exception only applies in CIVIL cases.
o BUT: When offered against a person other than accused for a reason other than impeachment, it is inadmissible.
o Again, declarant need not be unavailable.
o CA: Prop. 8 allows the prosecutor or defendant in a criminal case to impeach a witness using a criminal conviction, be that felony or misdemeanor, if it involves moral turpitude.
HEARSAY EXCEPTIONS: UNAVAILIBILITY OF DECLARANT IMMATERIAL- PUBLIC RECORDS
Hearsay records of a public office is admissible if it was within one of the following categories:
o Record describes activities and policies of the office;
o Record describes matters observed pursuant to duty imposed by law;
o Record contains factual findings resulting from an investigation made pursuant to authority granted by law;
o Unless untrustworthy; and
o In a criminal case, the prosecution cannot use (b) or (c).
o CA does not put the same restrictions on the prosecution: a record made by a public employee is admissible if making the record was within the scope of her duties, made at or near the time of the matters described, and the circumstances indicate trustworthiness
accused’s right to confront witnesses.
ELEMENTS AS ESTABLISHED IN CRAWFORD V. WASHINGTON: The Confrontation Clause excludes an out-of-court statement if:
o The statement is made out of court;
o The declarant does not testify at trial;
o Is now unavailable;
o The statement is “testimonial”; and
o The defendant did not have the chance to cross-examine the declarant about the statement when it was made
“TESTIMONIAL”: The full meaning is unclear, but it does apply to the following:
o Statements made in court; and
o Statements made to police in furtherance of their investigation and aimed at producing evidence for a prosecution.
“NON-TESTIMONIAL”: Statements made to police which deal with an ongoing emergency. These statements are not considered hearsay and are admissible without violating the confrontation clause.
The process of establishing facts without presenting evidence:
Facts Appropriate for judicial notice: Courts will take judicial notice of indisputable facts that are either:
o Matters of common knowledge in the community (notorious); or
o Facts capable of verification by an easily accessible source of unquestionable accuracy (manifest facts).
o Can be taken at any time, whether or not requested.
Procedure for taking judicial notice:
o A party may formally request judicial notice in order to compel it.
o If judicial notice is not requested, the court has discretion to take judicial notice.
o CA: Whether requested or not, courts MUST take judicial notice of matters generally known within the jurisdiction.
Criminal cases: Courts may instruct the jury to the fact being conclusive, but the jury is not required to accept the fact as conclusive.
Civil cases: If a court instructs the jury as to a judicially noticed fact as being conclusive, the jury must accept the fact as conclusive.
o CA: This rule applies to both criminal and civil cases.