Legal Principles Regarding Witness Testimony and Evidence in Criminal Cases, Study notes of French Language

Download Legal Principles Regarding Witness Testimony and Evidence in Criminal Cases and more Study notes French Language in PDF only on Docsity! Evidence Outline: Prof. Hogan, Fall 2001 I. Overview A. Ask what ultimate fact you’re going to get from item of evidence B. Look for elements of crime and prove it with the items of evidence 1. People v. White—needed to prove identity, physical part of homicide, murder theory II. Kinds of Evidence A. Direct Evidence 1. Eyewitness testimony. Someone perceived the fact a) T  “P” (testimony of a witness)P” (testimony of a witness)” (testimony of a witness)testimony of a witness) 2. Stronger than circumstantial evidence. 3. May be used to establish identity 4. Issues regarding Direct evidence a) Reduction of memory goes to the weight of the testimony, not the admissability B. Circumstantial evidence 5. Testimony of circumstances that point to P” (testimony of a witness) 6. An inference to a fact that no one actually perceived a) Ex: Gun used in murder was found in P” (testimony of a witness)’s house b) T  “P” (testimony of a witness)C” that implicate P” (testimony of a witness) c) May be used to establish identity 7. Issues regarding Circumstantial evidence a) Must believe the witness b) Must make an inference from the circumstance c) Witnesses are not allowed to draw inferences from circumstantial evidence (1) No opinion testimony allowed 8. Sometimes circumstantial evidence may be more powerful than direct evidence B. Real evidence —the thing itself 1. If it’s direct and circumstantial evidence, then it’s “P” (testimony of a witness)real” evidence 2. Fact brought into courtroom and examined. C. An item of evidence may fit in more than one category depending on what it’s used to prove 1. Ex: Gun in White case a) If trying to prove he was a murder, then circumstantial evidence b) If trying to prove he was in violation of his gun parole, then it’s real evidence c) If testimony is given that he had a gun, then it’s direct evidence III. Opinion Testimony A. Fed Rule 602—may only testify if witness has personal knowledge of the matter (testimony of a witness)P” (testimony of a witness)ersonal Knowledge Rule) 1. No drawing inferences from circumstances 2. Conculsory language is not allowed 1 B. Fed Rule 701 (Opinion Rule): when lay witness is trying to convey a perception they made it’s allowed if the facts could not otherwise be adequately presented to the jury for them to form an opinion or reach an intelligent conclusion 1. Must be rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony a) CEC same 2. Make sure it’s impossible or difficult to reproduce the data observed or if the facts are hard to explain. a) Ex: Conclusory language saying girl looked older than 16 b) Ex: mannerisms and facial features 3. P” (testimony of a witness)hotographs a) Testimony of employer saying the photo was the perpetrator is okay if they had familiarity with P” (testimony of a witness) at time of crime and level of familiarity was good. b) Goes to the weight of the testimony 4. Opinion must be rational a) Testimony of 9 year old as to speed of car is not rational 5. Lay opinions can sometimes be shorthand statement of the facts IV. Probative Value of Circumstantial Evidence A. Fed Rule 403—Relevant evidence may be excluded if its probative value is outweighed by danger of unfair prejudice, etc. 1. P” (testimony of a witness)rejudice, confusion of issues, misleading jury, waste of time, cumulative evidence 2. Most important rule of evidence 3. Cal Evidence Code 352—about the same. Court has the discretion to exclude B. Relevant evidence must be probative 1. Engel—wanted testimony saying P” (testimony of a witness) was fired three days after his car accident to prove that he might have been fired cuz of the incident a) But firing could have been for many different reasons C. Circumstantial evidence open to several different interpretations is okay if one of these tests are met: 1. T  C that necessarily follows the P” (testimony of a witness). a) If the proposition necessarily follows the circumstance, then almost 100% probative b) If “P” (testimony of a witness)C” was the probable explanation for what happened, then 50% probative c) If C is most probably the reason why P” (testimony of a witness) happened—allowed only if higher than any other single inference d) If it’s a possible inference. Must score above )% relevance D. Fed Rule 401—relevant evidence is a more probable standard, the minimal test (testimony of a witness) D in above scale) 1. Ask if the C makes the proposition more probable with it than without it. 2. California is more exacting and requires a 1% probative value 2 (testimony of a witness)b) Usually these statements are admitted when issues is whether hearer had notice (testimony of a witness)c) Statement by arresting officer describing how he came to make the arrest is not strictly hearsay, but construed as such cuz of dangers of prejudice and irrelevancy (testimony of a witness)4) Declarants state of mind—statements to show his state of mind aren’t barred by hearsay rule (testimony of a witness)a) Ex; to show that declarant had knowledge of some matter (testimony of a witness)b) Also, declarants sanity and emotions (testimony of a witness)fear) may be shown (testimony of a witness)5) Impeachment—if witness tells story and lawyer uses previous out of court statement to show he’s lying, not hearsay cuz it’s introduced to show that witness is not credible iv) Statement or conduct (testimony of a witness)1) Oral or written assertion (testimony of a witness)2) Assertive conduct—nonverbal, but still an assertion (testimony of a witness)a) P” (testimony of a witness)ointing to mug shots is same as saying “P” (testimony of a witness)that’s him” Hearsay (testimony of a witness)b) Gestures and signals merely replacing words may be hearsay (testimony of a witness)3) Silence (testimony of a witness)a) Absence of complaints is allowed (testimony of a witness)b) If reasonable person would deny statement made, then silence is allowed as admission if D did not deny it. (testimony of a witness)4) Non assertive conduct are not hearsay (testimony of a witness)a) Ex: fainting, sea captain embarking, passengers not complaining (testimony of a witness)b) Involuntary conduct (testimony of a witness)c) P” (testimony of a witness)hysical conduct with words (testimony of a witness)i) Words being used to draw inference from what occurred earlier (testimony of a witness)people placing bets) (testimony of a witness)d) P” (testimony of a witness)hysical Conduct (testimony of a witness)e) Silence (testimony of a witness)f) But still must assess probative value and danger (testimony of a witness)g) Letters showing sanity of writer—may be used to prove that reader thought writer was sane 3) Statements that are never hearsay a) Oral performatives—offer, acceptance, etc b) Commands c) Instructions d) Questions asked e) Warnings 4) Personal Knowledge Rule a) Remember that witness must be present during the statement b) Distinguish hearsay with lack of personal knowledge on tests! i) Ex: “P” (testimony of a witness)the car that hit him was red” verses “P” (testimony of a witness)P” (testimony of a witness) told me that the car that hit him was red” 5) Multiple Hearsay 5 a) Each level must be tested for hearsay for admissibility purposes i) Ex: written report of someone’s out of court statement (testimony of a witness)1) Look to see if report is hearsay (testimony of a witness)2) Then look to see if the statement is hearsay ii) Ex: police testimony that dispatcher radioed that someone reported seeing someone with gun (testimony of a witness)1) Not hearsay if offered for background information (testimony of a witness)a) But must weigh probative value vs. probative danger. (testimony of a witness)b) Out of hearsay, but into irrelevance Exceptions to Hearsay Rule Admissions I. Admission against Interest by a Party Opponent A. Fed Rule 801(testimony of a witness)d)2—Statement isn’t hearsay if it’s offered against a party and is his own statement 1. Cal rule basically the same 2. Basically, a party’s words or acts may be offered against him 3. May be against the party’s interest at time made, but need not be a) P” (testimony of a witness)olicy: people don’t normally assert something false if it’s against their interest b) Doesn’t have to be against interest at the time it was made B. Most important hearsay exception 1. Not hearsay cuz hearsay rule is not designed to protect X against X’s own out of court statements C. Opinion rule does not apply if evidence qualifies as admission by party opponent 1. Ex: Man said accident was caused by dodge car. Objection was hearsay and opinion rule. But since it qualified as an admission, opinion rule does not apply D. Do not need personal knowledge to have admission admitted. 1. P” (testimony of a witness)ersonal knowledge rule applies across the board to all hearsay statements except this one 2. If she had said “P” (testimony of a witness)Carmen told me that tippy bit the child” instead of “P” (testimony of a witness)tippy bit the child” then statement would be hearsay and inadmissible E. Must be made by a party. 1. If State is party, then can’t use admission by a party opponent to get in an out of court statement by the victim. a) But you could still get it in only to prove it was made— consider relevancy F. Admission by your party 1. Zack--No exception to hearsay rule by party proponent. Can’t offer your own statements to prove your statements offered a) Here, his testimony as to his whereabouts was spoliation evidence and was relevant just to prove statement was made 6 (1) Examples of spoliation evidence: (a) Bribing a witness (b) Intimidating a witness (c) Fleeing a state after a crime (d) Lying about whereabouts (e) Destroying evidence (2) Relevant cuz there’s other evidence that contradicts the alibi—all circumstantial evidence indicating consciousness of guilt G. P” (testimony of a witness)revious Documents and Acts 1. Ando—P” (testimony of a witness) testified Ando admitted guilt at traffic court. a) Hearsay though relevant, and fact could be proved by anyone who saw him plead guilty 2. Citation is hearsay and inadmissible 3. P” (testimony of a witness)aying a fine or bond—not admissible cuz it’s a shortcut to a nolo contender situation 4. P” (testimony of a witness)leading guilty on Nolo contendere—can’t be used against you 5. P” (testimony of a witness)leading guilty if nolo contendere not available—inconclusive and goes to the weight of the document 6. Convicted in criminal case based on full trial on the merits—allowed by means of collateral estoppel and res judicata, except if it’s a traffic violation a) Exception only in CA—conviction can’t be used against you 7. P” (testimony of a witness)revious complaints filed—not hearsay unless judicial admission a) Judicial admission—formal concession by a party that fact is true and will be deemed true for the purpose of a particular lawsuit (1) Ex: stipulation, request for admissions (2) A judicial admission from an earlier case may have probative value as an evidentiary admission in a later case b) Evidentiary admissions (1) Sometimes pleadings can be used for evidentiary admission, but evidence is not conclusive. (2) Using statements in CA violates liberal pleading rules, so CA doesn’t allow (3) Most courts allow this type of evidence (4) Watch for probative danger H. Statements made by D2 against D1 1. Ghezzi—D2 deposition that “P” (testimony of a witness)if P” (testimony of a witness) developed arthritis in his wrist after he broke it, it would have been aggravated.” a) If case only against D2, not hearsay cuz admission of party opponent. (1) May be offered even if Mulder testifies b) If suing only D1 (1) Hearsay cuz offered for truth of matter asserted. c) If suing both (1) Admissable against D2 but not D1 7 D. If only one conspirator is charged with murder, statements by the others can be used against him without the charge of conspiracy. Unavailability Exceptions I. Introduction and Hypos A. Situations making a second trial necessary 1. Untoward occurrence in first trial (testimony of a witness)witness blurting out an inflammatory inadmissible fact) 2. Mistrial 3. Hung jury 4. Motion for new trial 5. Error by the trial court in first trial B. Evidentiary P” (testimony of a witness)references between first and second trial 1. Testimony from first trial—hearsay if offered to prove truth of the matter asserted a) We prefer live testimony cuz of demeanor 2. Trial testimony is preferable, although hearsay, to unsworn assertions 3. If witness is available, then above cannot be used. a) But exceptions apply when unavailable (testimony of a witness)1) Former testimony would be allowed II. FRE 804(testimony of a witness)a) and CEC Definition of Unavailibility A. Declarant is not unavailable if his ‘unavailability is due to wrongdoing of proponent of the statement for the purpose of preventing witness’ testimony 1. CEC—if declarant suffers from trauma resulting from a crime, and cant testify without being more traumatized, then unavailable if expert testimony establishes suffering. B. Categories of unavailability 1. Dead 2. P” (testimony of a witness)hysical Illness 3. Mental Illness 4. Whereabouts unknown 5. Absence from jx 6. P” (testimony of a witness)rivilege 7. Memory Lapse—(testimony of a witness)FRE only) 8. Refusal to answer—(testimony of a witness)FRE only) III. Depositions as “P” (testimony of a witness)Former Testimony” A. FRCP” (testimony of a witness) 32—Deposition may be used against any party present or represented at the taking of the deposition if they had reasonable notice 1. Deposition may be used by any party, even if witness is not a party, if witness is unavailable if the witness is: a) Dead b) Greater than 100 miles from trial or hearing (testimony of a witness)1) Measured by crow’s flight from courthouse, home, or work c) Out of the US, unless party offering depo caused absence 10 d) Unable to testify cuz of age, illness, imprisonment e) Couldn’t produce witness by subpoena f) Exceptional circumstances, with notice and application 2. Adverse party may require the offerer to introduce any other part to consider with the parts being introduced B. Cal Discovery Act 2025(testimony of a witness)u)—a deposition can be used against any party present or represented at the taking of it, if he had notice 1. Any party can use deposition of any person or organization if witness is unavailable, meaning: a) Lives more than 150 miles from trial or hearing b) Has a privilege c) Disqualified from testifying d) Dead or ill e) Court can’t compel his attendance f) Absent, and after reasonable diligence, can’t produce his attendance 2. Exceptional circumstances may exist to allow use of deposition in interests of justice 3. Any party can use a video tape depo of a treating or consulting doctor or any expert witness even though he’s available to testify as long as the deposition notice reserved the right 4. Any party may introduce parts of depo that are relevant to parts introduced C. General P” (testimony of a witness)rovisions 1. Rule of greater than x miles a) Measured by crow’s flight from courthouse, home or work b) P” (testimony of a witness)arty may offer his own deposition—split of authority 2. Lack of memory a) Cal rules of unavailability—evidence allowed if witness is unable to give same testimony in the second case (testimony of a witness)1) Trial court makes the determination whether she has lack of memory 3. Fear of bodily harm a) Fed court allows deposition to be used b) California does not. IV. Testimony of Former Trials A. CEC 1290 Definition of Former Testimony 1. Testimony given under oath in a) Another action or in a former hearing/trial of same action b) P” (testimony of a witness)roceeding conducted by an agency or public entity in the US c) A depo taken in compliance with law in another action d) An arbitration proceeding B. CEC 1291 Former Testimony Offered Against P” (testimony of a witness)arty to Former P” (testimony of a witness)roceeding 1. Declarant must be unavailable as a witness and: 11 a) Testimony is offered against a person who offered it in evidence in his own behalf on a former occasion, or against the successor in interest of such person b) P” (testimony of a witness)arty against whom testimony is offered was a party to the action and could cross examine the declarant with an interest and motive similar C. CEC 1292 Former Testimony Offeredd Against person not a party to former proceeding 1. May be offered if: a) It’s offered in a civil action and b) There was a right to cross examination in the former proceeding with interest and motive similar D. FRE 804(testimony of a witness)b)1 Former Testimony 1. Declarant must be unavailable, etc. E. Before testimony can be taken from former trial or proceeding, these requirements must be met: 1. An inability to obtain the testimony of the witness 2. An opportunity to cross examine the witness in the former trial a) Must have had an opportunity to cross examine with a similar motive 3. An identity or substantial identity of issues AND identity or substantial identity of parties a) Cal—only requires ‘an interest and motive similar.’ Doesn’t require identity b) Cal—limited to civil actions—testimony won’t be admitted in criminal cases F. Usually item of evidence offered was obtained earlier from the same case 1. If former testimony is from another case, probably no identity of parties or issues G. Fed rules 1. Identity of parties a) P” (testimony of a witness)redecessor in interests—if similar motive in interest, then okay if subsequent party uses the testimony (testimony of a witness)1) Given lenient definition (testimony of a witness)2) Must have had opportunity and ability to cross examine witness from the previous civil action or proceeding H. Traditional fallback—exclude evidence under Fed Rule 403—P” (testimony of a witness)robative danger outweighs probative value rule I. Grand Jury Testimony 1. Defendant may not use his own testimony from a grand jury (testimony of a witness)admissions of a party proponent) unless: a) He is unavailable as a witness b) But if he’s invoking a right not to take the stand, can’t use it J. Criminal Cases 1. Ca and Fed rules—proxy cross-examination can only be used when offering evidence in civil case 12 VII. Statement of Personal or Family History A. Fed Rule 804(testimony of a witness)b)4 1. Declarant must be unavailable 2. No personal knowledge required 3. May give statements of another person if related or intimately associated with the other’s family so that he has accurate information B. CEC rule same as above, but needs to be trustworthy VIII. Residual Unavailability Exception A. Fed Rule 807 1. Statement not covered by 803 or 804 can be offered if 2. Statement is offered as evidence of a material fact AND 3. Statement is best evidence possible procured through reasonable efforts AND 4. Interest of justice is served 5. Needs advance notice to adverse party and party’s intent in offering statements, and declarant’s information given to adverse party B. Need equivalent circumstantial guarantees of trustworthiness 1. A firmly rooted exception has indicia of reliability C. Grand jury testimony can’t be offered against defendant 1. Unlike preliminary hearing cuz no cross examination 2. Not close enough to other exceptions of hearsay rule D. Don’t follow Cal rules for this exception E. Criminal Cases and the 6th Amendment 1. Some statements that would not be admissible because of the 6th amendment may be admissible under the residual exception IF a) There is an indicia of reliability (testimony of a witness)1) Meaning there are particular guarantees of trustworthiness (testimony of a witness)a) Look at circumstances attending the statement itself and look for inherent trustworthiness (testimony of a witness)Majority) (testimony of a witness)b) Minority—look at corroboration evidence— other evidence offered in the case (testimony of a witness)2) Must get in under a firmly rooted hearsay exception 2. Unavailability not a concern in this case Comparability Exceptions I. Contemporaneous Statements Generally A. Unavailability not a factor B. Usually these are statements made relatively near time of the event C. Res Gestae—offering statement only to prove that it was made 1. Let evidence in because of special reliability 15 2. If someone sees something exciting without reflection, it’s likely to be accurate II. Excited Utterances A. FRE 803(testimony of a witness)2) 1. Statement relating to startling event or condition while declarant was under the stress of excitement caused by the event is not hearsay a) CEC same B. Hypo 1. W testifies D said “P” (testimony of a witness)I told them to clean it up half an hour ago” a) If used for notice, then it’s relevant evidence b) D was not under oath; no cross examination, demeanor (testimony of a witness)so it’s hearsay) c) W was under oath d) This may fall under an exception C. Excited Utterance Elements 1. Startling event 2. Declarant becomes excited 3. Statement made while excited 4. Statement relates to the event 5. Factors a) Nature of the startling event b) Degree of declarant’s involvement c) Amount of time in interval (testimony of a witness)1) Usually 20 minutes from event (testimony of a witness)2) If declarant unconscious, subtract time from time interval d) Hurts statement if only in response to a question e) Not disqualification if self-serving, but it’s a factor III. Statements of Present Sense Impressions A. These are statements as they’re perceived 1. These statements can be quickly verified 2. This hearsay is better than asking a person in court what they perceived a) More reliable b) No memory problems or chance to fabricate B. Fed Rule 803(testimony of a witness)1) 1. Statement describing or explaining an event or condition made what the declarant was perceiving it or immediately thereafter is not hearsay a) CEC 1241—must be made to explain conduct of declarant and made while declarant was engaged in the conduct C. General P” (testimony of a witness)rovisions 1. No excitement is needed for present sense impressions 2. Can be about everyday events 3. Timeframe is MUCH tighter—must be immediately thereafter 16 a) Trend is to be more lax though 4. FRE is similar but not identical to Cal Section 1241 IV. Statements of Physical Condition A. Hypo: I’m having one of those headaches and pains that I’ve been having every three days since last summer when a drunk smashed into the back of my car while I was stopped at a red light. Hearsay statements listed below: a) I have headache and pains now b) I’ve had this ever since last summer c) It started after I was involved in a car accident d) My car was stopped e) I was hit from the rear f) The guy who hit me was drunk g) He ran a red B. FRE 803(testimony of a witness)3) 1. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (testimony of a witness)pain, intent, motive, design, mental feeling, pain, bodily health) is not hearsay, but doesn’t include a statement of memory or belief to prove the fact remembered or believed. a) Only first statement falls under this exception b) May be made to a friend/coworker/etc C. FRE 803(testimony of a witness)4) 1. A statement made for purposes of medical diagnosis or treatment and describing medical history or past/present symptoms, pain, or sensation or the cause or external source of it insofar as it’s pertinent to treatment isn’t hearsay. a) Statements 1-5 would be covered if made to anyone as long as made for purpose of seeking treatment, but not 6-7 cuz not useful in diagnosis. (testimony of a witness)1) Mom, friend, doctor, ambulance driver okay. (testimony of a witness)2) If offered to an expert medical witness, all statements are allowed for the purpose of explaining the basis of his opinion D. In dealing with a hearsay objection, each factual assertion should be treated as a separate out of court statement. V. State of Mind Exception A. FRE 803(testimony of a witness)3) 1. Statement of declarant’s then existing state of mind or emotion (testimony of a witness)intent, plan, motive, design, mental feeling) is not hearsay. This doesn’t include statements of memory or belief to prove the fact remembered unless it relates to the execution, revocation, or terms of declarant’s will a) May be used for any purpose b) Doesn’t need trustworthiness B. CEC 1250 1. Same as above minus will clause P” (testimony of a witness)LUS 17 a) Self serving interests—accident reports in anticipation of litigation b) However, if made in regular course of business (testimony of a witness)routinely), then it’s okay c) Make sure motive in preparing record is not for anticipation of litigation E. Hearsay Issues 1. Business records exception lets in some double hearsay a) But both declarants must have been under a duty to the business when making the statement b) Outsider statements observed must, however, fall within another hearsay exception (testimony of a witness)1) Excited utterance, present sense impressions, etc may still apply 2. Also, look for statements against interests—these are not business records exceptions 3. Ex: Welfare department file—person supervising case wrote that a field representative reported that during an interview Wasserman said “P” (testimony of a witness)my deal with Ms. Kelly is that she can live in the house rent free.” a) Four out of court statements contained (testimony of a witness)1) “P” (testimony of a witness)wrote”—business records exception (testimony of a witness)2) “P” (testimony of a witness)report”—business records exception (testimony of a witness)3) “P” (testimony of a witness)said”—admission of party opponent (testimony of a witness)4) “P” (testimony of a witness)deal”—oral offer—not hearsay b) Statement is admissible F. Diffrentiate between different exceptions 1. Hospital Admission Note: “P” (testimony of a witness)P” (testimony of a witness)atient was crossing street and auto ran into stopped auto, hitting patient” Signed by doctor a) This is admissible under admissions of party opponent—P” (testimony of a witness) and D’s stories were the same b) NOT admissible under business record exception, cuz not an entry significant to regular course of business (testimony of a witness)1) However, you could get the evidence in by: (testimony of a witness)a) P” (testimony of a witness)utting doctor on the stand and trying to refresh his recollection (testimony of a witness)i) “P” (testimony of a witness)P” (testimony of a witness)ast recollection recorded” 2. Any business record can be a past recollection recorded if you bring all the people in a) Bring in person who wrote the record VIII. Public Records Exception A. FRE 803(testimony of a witness)8)b P” (testimony of a witness)ublic Records and Reports 1. Declarant may be available 2. (testimony of a witness)a) Records, etc setting forth activities of the office or agency or (testimony of a witness)b) matters observed pursuant to duty imposed by law that one had a duty to report, excluding criminal case matters observed by police or other law 20 enforcement personnel or, (testimony of a witness)c) factual findings resulting from an investigation made pursuant to authority granted by law, if trustworthy, in civil actions and against the Government in criminal cases 3. Exceptions to 803(testimony of a witness)8)B—excluded in criminal cases are matters observed by police officers a) Government has motive to falsify statements b) BUT if mundane entry without regard to potential criminal litigation, then it’s admissible B. P” (testimony of a witness)ublic Records Exception does not include opinions 1. However language of 803(testimony of a witness)8) mean the entire record is admissible, not just the factual finding of the report a) If concerned about opinion—or declarant lying or mistaken--- focus on trustworthiness (testimony of a witness)1) Rule 803(testimony of a witness)8)C—will exclude if there’s a lack of trustworthiness in the record C. P” (testimony of a witness)revious Convictions 1. FRE 803(testimony of a witness)22) Judgement of P” (testimony of a witness)revious Conviction a) Declarant may be available b) Evidence of a final judgment entered upon a plea of guilty, to prove any fact essential to sustain the judgment, but not including judgments against persons other than the accused when offered by Government in a criminal prosecution for purposes other than impeachment c) Must be a felony 2. Only convictions may be admitted as evidence a) Acquittals are not admissible 3. CA may enter evidence even if judgment was based on nolo contendere plea. IX. Misc CEC P” (testimony of a witness)rovisions A. CEC 1253 Statements for P” (testimony of a witness)urpose of Medical Treatment 1. Minors may make statements for the purpose of medical treatment (testimony of a witness)under 12) describing any act of child abuse or neglect B. CEC 1360 Statements from Victims of Child Abuse 1. In a criminal proceeding, statement describing any act of child abuse is not inadmissible if: a) Statement is not otherwise admissible by statute b) There’s reliability c) The child either (testimony of a witness)1) Testifies at proceedings OR (testimony of a witness)2) Is unavailable as a witness, in which case the statement may be admitted only if there’s corroborating evidence of child abuse C. 1370 Statements by Threatened Victims 1. Statement must describe the threat or injury on the declarant 2. Declarant is unavailable 3. Statement was made near the time of injury or threat 21 a) Statements made more than 5 years before the filing of action is inadmissible 4. Statement is trustworthy a) Was it made in contemplation of litigation? b) Did declarant have a bias or motive to lie? c) Is statement corroborated by other evidence? 5. Statement was in writing or made to a law enforcement official or electronically recorded Expert Witnesses I. Expert Witnesses Rules A. FRE 702 Testimony by Experts—if the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a qualified witness may testify by opinion or otherwise if (testimony of a witness)1) the testimony is based on sufficient facts or data, (testimony of a witness)2) the testimony is the product of reliable methods, and (testimony of a witness)3) the witness has applied the methods to the facts of the case 1. Five Requirements a) Specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue (testimony of a witness)1) Not just common knowledge b) Witness must be qualified (testimony of a witness)1) Experience education or training c) Testimony must be based on sufficient facts or data (testimony of a witness)1) Facts of the case or reliable opinions of other experts d) Testimony must be products of reliable principles and methods (testimony of a witness)1) Applies to technical knowledge too e) Witness must apply these methods reliably to the facts of the case 2. CEC 801—same, but opinion must relate to a subject that’s beyond common experience so that the opinion will assist the trier of fact AND based on a matter made known to him that reasonably may be relied on by an expert in forming an opinion upon the subject. B. FRE 703 Bases of Opinion Testimony by Experts 1. If facts or data are of a type reasonably relied on by experts in a particular field in forming opinions or inferences about a subject, the fact or data doesn’t need to be admissible in evidence in order for the opinion to be admitted a) May base opinion on inadmissible hearsay b) But if a reasonable expert wouldn’t reasonably rely on the data, then the expert can’t either, if data is inadmissible 2. Facts not otherwise admissible will not be disclosed to the jury by the proponent of the opinion unless the value outweighs the prejudice of admitting the fact 3. CEC 802—same, but may state on cross examination the basis of opinion 22 1. Experts may testify about mental competence a) Can’t ask expert of X was mentally competent to make a will (testimony of a witness)1) Can’t ask law in fact application questions 2. FRE 702(testimony of a witness)b) prohibits mental expert from offering opinion as to whether defendant possessed required mental state at the time of crime a) May describe qualities of the disease (testimony of a witness)1) How disease affects cognitive abilities (testimony of a witness)2) Whether D is suffering from the disease Applied Relevance I. Relevance does not always lead to admissibility A. P” (testimony of a witness)robative value vs. probative danger test must be ment II. Liability Insurance A. Evidence that D has liability insurance is NOT admissible for purpose of showing D was negligent 1. Encourages people to carry liability insurance without penalty 2. Evidence of insurance may be admissible for other purposes— ownership, control, proof of agency, proof of bias of a witness, etc. B. May offer insurance coverage for evidence of any other material issue in case C. May ask jurers questions about insurance during voire doire D. If admission of liability comes by implication from reference to insurance, then courts will allow as admissions of a party opponent 1. “P” (testimony of a witness)I’ve got plenty of insurance.” 2. If statement has factual admissions concerning why accident happened, and admissions show liability, court will sever and exclude reference to insurance E. P” (testimony of a witness)erson has no right to show he wasn’t insured unless other side brings up insurance. III. Offers of Compromise A. Settlement offers, etc are inadmissible if used to indicate liability 1. Settled claims are also inadmissible B. Any statements or conduct made at time of compromise are also inadmissible 1. “P” (testimony of a witness)I was drunk, here’s 90,000 dollars” C. P” (testimony of a witness)roving settlements and offers of compromise precludes use on issue of liability or damages ONLY IV. Withdrawn P” (testimony of a witness)leas A. Offer to plead guilty, or withdrawn plea of guilty is inadmissible in any civil or criminal case 1. Not considered admissions of party opponent V. Subsequent Remedial Conduct (testimony of a witness)Safety Measures after Accident) 25 A. FRE 407—if after a harm, measure are taken which would have made the injury less likely to occur, evidence is not admissible to prove negligence, culpability, or product liability. 1. Evidence may still be used if offered for another purpose such as ownership, control, impeachment, feasibility of precautionary measures B. CEC 1151—evidence is only inadmissible to prove negligence or culpable conduct in connection with the event C. Types of remedial conducts 1. Changes 2. Repairs 3. Warnings 4. Guards 5. Safety Rules 6. Firing an employee involved in particular accident D. Subsequent Remedial Conduct is inadmissible to show negligence or culpable conduct E. Exceptions: 1. May be admissible to rebut a defense based on the nature or condition of the accident scene 2. May be offered on any other material point in case. 3. Lots of ways to get evidence in F. State Court: 1. There’s a strict liability exception, not a culpable one 2. Culpable means liability producing conduct, including products liability 3. Would be admissible 4. If moved to fed court, then FRE should apply VI. Similar Happenings and Transactions A. Contracts 1. Similar contracts may be admissible depending on similarity 2. Might be proved by res inter alios acta [alteri non debet nocere] a) A matter done among others ought not to harm people 3. “P” (testimony of a witness)Two other sellers gave their buyers warranties in the neighborhood” a) Must be trying to prove custom or practice. b) Difficult to get in 4. “P” (testimony of a witness)In previous sales, he gave me the warranty.” a) Highest probative value—admissible 5. If D denies giving warranties in other deals, a) P” (testimony of a witness)robative danger cuz then there are time issues to prove the other contract issues of other people B. Similar Accidents 1. Negligence a) Need to prove existence of the condition giving rise to injury b) Actual causation between condition and injury c) Dangerousness of condition 26 d) Foreseeablility of danger to defendant 2. If there are similar happenings, ask if they indicate or verify your circumstances—does it shed light on causal connections? 3. May be used to show that D had notice 4. Absence of accidents is relevant to show lack of foreseeability of harm 5. Doctrine of Chances a) More often an accidental incident occurs, more likely that subsequent reoccurrence is not accidental if they are similar Character Testimony Character in Issue I. Testimony as to a person’s character may be relevant if character is a critical element of particular case A. FRE 404—may be proven by opinions, reputation, or specific acts B. Common Situations where Character is in issue 1. Negligent Entrustment 2. Truth defense in libel and slander cases 3. Fitness of parent in custody cases 4. Defendant’s predisposition as rebuttal to claim of entrapment 5. Amount of punitive damages Character as Circumstantial Evidence II. General Rule—character evidence is not admissible if used as circumstantial evidence A. FRE 404(testimony of a witness)a)—evidence of a person’s character or trait is not admissible to prove action in conformity therewith on a particular occasion B. CEC-- same C. Civil Cases 1. Generally inadmissible to show carefulness/carelessness in negligence cases 2. If D claims self defense, all courts will allow him to introduce evidence of victim’s reputation for violence D. FRE 405—Methods of proving Character 1. Reputation or Opinion—in cases where evidence of character or trait is admissible, proof can be made by reputation or opinion. On cross x, may inquire about specific acts 2. Specific Acts—in cases where character trait is an essential element of a charge, claim, or defense, proof may be made by specific acts 3. CEC—may use opinion, reputation or specific acts III. Habits A. FRE 406—evidence of a habit or routine practice of an organization is relevant to prove that the conduct on a particular occasion was in conformity with the habit 27 1. Allows prosecution to bring in own witnesses discussing character 2. Does not allow prosecution to go into defendant’s character 3. But if D attacks character of victim, then prosecution may call into question character of defendant in rebuttal E. P” (testimony of a witness)rosecution Case in Chief 1. May use specific acts (testimony of a witness)other burgularies, convictions) to show pertinent traits such as a) Dishonesty b) Not respecting property rights c) Not law abiding 2. Evidence of other crimes is inadmissible when offered soley to prove criminal disposition or propensity cuz or probative danger 3. Evidence of other crimes is admissible if it discloses a mo when the issue is identification a) Need common marks 4. ONLY the accused in criminal cases may raise issue of character a) But jury can determine type of person defendant is from specific acts F. Summary 1. P” (testimony of a witness)rosecution Case in Chief a) May use specific acts (testimony of a witness)other burgularies, convictions) to show pertinent traits such as (testimony of a witness)1) Dishonesty (testimony of a witness)2) Not respecting property rights (testimony of a witness)3) Not law abiding b) Evidence of other crimes is inadmissible when offered soley to prove criminal disposition or propensity cuz or probative danger c) Evidence of other crimes is admissible if it discloses a mo when the issue is identification (testimony of a witness)1) Need common marks 2. ONLY the accused in criminal cases may raise issue of character 3. But jury can determine type of person defendant is from specific acts 4. No prohibition against using specific acts of misconduct as circumstantial evidence of what D did on a specific occasion a) P” (testimony of a witness)rohibition is against using D’s character, as manifested by specific acts, to show what D did on certain occasion 5. During P” (testimony of a witness)rosecutions Case it is prohibited from offering evidence of specific acts of misconduct by D to reveal D’s bad character traits a) But not prohibited from offering specific acts that reveal d’s bad character traits 6. P” (testimony of a witness)in down prosecution to show exactly why evidence is admissible and determine that it’s really relevant 7. Specific Acts may give: motive, intent, mo, knowledge—look to theory other than character to sanitize the evidence 30 Impeachment of Witnesses I. Impeachment Generally A. Definition: Technique to show flaws to the witness, not the testimony 1. Destroys witness’ credibility—shakes confidence of the accuracy or truthfulness of the witness B. Technique 1. Step 1—recognize that credibility of each witness and hearsay defendant might be an issue. 2. Step 2—Spot relevance of some fact about the witness or declarant related to credibility 3. Step 3—Fit fact into one or more of the 5 categories of impeachment 4. Step 4—Ascertain the stage at which impeachment by category may be carried out. a) Safe rule is to ask during cross exam and then use extrinsic evidence II. Impeachment by Defective Capacity A. Witness may be impeached if he has a sensory or mental defect 1. Types of Defects a) Senile, immature, medicated, excited or stressed, preoccupied, language barrier, B. Stage of Impeachment 1. Elicit during cross as foundation, then resort to extrinsic evidence. 2. May also directly resort to extrinsic evidence III. Impeachment by Character A. Reputation/Opinion—may impeach by showing that witness has bad reputation for truthfulness 1. Stage of Impeachment a) Direct resort to extrinsic evidence (1) W2 may state own opinion of W1 or give W1’s reputation for impeachment purposes (2) Can’t refer to specific instances though, but may on cross examination 2. Must testify for truthfulness only, not other character traits B. Convictions (testimony of a witness)Rule 609)—may be impeached if convicted of certain crimes 1. Generally--Must have resulted in criminal conviction or is probative of witness’s character for truthfulness a) Witness must be given right to explain the circumstances of prior conviction b) Can’t use if pardoned for rehabilitation if not convicted of subsequent felony (1) Or if pardoned for innocence 31 (2) Not admissible if juvenile conviction, but in criminal case, may be used for non-D Ws c) Rule 608b--If no conviction, can’t use extrinsic evidence to get testimony of specific acts in to prove untruthfulness (1) May only inquire in cross examination (2) Use this for bad acts 2. Rule 609 (testimony of a witness)Crimen falsi)—Impeachment if crime involved dishonesty or false statement a) Admitted during cross examination b) May be misdemeanor or felony c) Must be admitted without balancing test (1) Contrast: Non crimen falsi requires balancing d) Types of crimen falsi— (1) P” (testimony of a witness)erjury, false statement, fraud, embezzlement, etc e) Ten year time limit—date of conviction 3. Rule 609 (testimony of a witness)non Crimen falsi crimes) a) Admitted during cross examination b) Must be a felony (1) If not, then use 608 c) Must weigh probative value to allow evidence (1) If W is D then conviction excluded even if only slight prejudice (a) If W not D then blocked only if substantially exceeds probative value (2) Balancing Factors (a) The more similar the crime, the more prejudicial (b) If D, the more important the testimony, the less likely he’ll be impeached d) Not admissible after 10 years, unless lots of probative value C. Specific Acts (testimony of a witness)Rule 608)—W may be impeached if he committed a bad act 1. May be proved only through cross examination a) Out of mouth of witness ONLY—no extrinsic evidence may be brought in 2. Must be probative of truthfulness/untruthfulness 3. NO absolute right—discretion of the judge 4. Not a waiver of self-incrimination when examined on matters relating only to credibility 5. Should be read consistently with 609, so if bad act is a crime, use 609. IV. CA Impeachment by Specific Acts A. Generally 1. Felonies are sentenced to prison, not jail 2. Civil Cases a) Sec. 787—specific instances aren’t allowed to attack credibility of a witness 32 examination to prove truth of matters asserted when D is available as a witness to the trial C. Hearsay Issues 1. Generally: reasons for excluding hearsay (testimony of a witness)prior inconsistent statements) evaporate if witness is in the courtroom a) CEC 1235—evidence of a statement made by W that is inconsistent with W’s testimony is not hearsay if its to show the prior inconsistent statement (1) May be used substantively b) CEC--P” (testimony of a witness)rior Identification Hearsay Exceptions (1) Requires: (a) Identifying statement (b) At a time when crime was fresh in W’s memory (c) Offered after E testifies that he made the identification c) Feds allow prior inconsistent statements 801(testimony of a witness)d)(testimony of a witness)1)(testimony of a witness)a) (1) If given under oath in another proceeding, testimony, deposition, prelim hearing. (a) May be used substantively only if in another proceeding, etc (i) Grand jury testimony, trail testimony in which W is not a party, depo testimony if not a party, etc. (2) May be used to impeach (a) If 901(testimony of a witness)d)(testimony of a witness)1)(testimony of a witness)a) doesn’t apply surprise and damage still apply d) Fed--Statements of identification are not hearsay (1) If subject to cross examination (2) And if made after seeing the person 2. California—if witness testifies “P” (testimony of a witness)I can’t remember” it’s not inconsistent with prior out of court statement. VII. Impeachment by Specific Errors A. If W’s testimony contradicts testimony given before, or other people’s testimonies, W may be impeached. 1. Wrong answers cast doubt on everything said B. Impeached on cross or in direct 1. If it’s a prior inconsistent statement, on cross 2. If there’s bias, impeach on cross, then bring in extrinsic evidence C. Collateral matters are admissible for impeachment purposes 1. Bur collateral character reduces probative value VIII. Rehabilitation A. CL rule--May reestablish credibility of W only after attacked. 1. Facts supporting credibility are not admissible during direct exam of W 35 2. CA—arguably admissible under art I, section 28(testimony of a witness)d) a) Relevant evidence is not excluded in any criminal proceeding B. Methods of attack 1. By opinion testimony for untruthfulness a) then, may only show supporting evidence showing trait of truthfulness by any means 2. By developing specific acts of crimes reflecting truthfulness and honesty a) Supporting evidence may be in form of reputation or opinion 3. By showing bias a) Show that consistent statements were said before bias 4. By making prior inconsistent statement a) If W admits statement, allow prior consistent statements b) If W denies statement, allow prior consistent statements if made near time of alleged inconsistent statements c) CEC 791(testimony of a witness)a) allows prior consistent statements if credibility is attacked by prior inconsistent statements C. CEC 780 – General Credibility Rules 1. Any evidence dis/proving truthfulness of W’s testimony may be considered in determining the credibility of W including:\ a) Demeanor while testifying b) Character of testimony c) Extent of his capacity to remember or communicate matters about which he testifies d) Character for honesty e) Existence of bias f) Inconsistent statements g) Specific errors h) Attitude toward the action i) Admissions of untruthfulness D. CEC 785—Credibility of W can be attacked or supported by any party E. CEC 789—evidence of religion is inadmissible to attack or support credibility F. FRE – allows prior consistent statements to rehabilitate 1. Must be made before W had a motive to falsify Privileges General Rules I. CEC General P” (testimony of a witness)rivilege Rules A. P” (testimony of a witness)rovisions 1. No person has a privilege to refuse to be a witness 2. No person has a privilege to refuse to disclose any matter or to produce any writing, object, or other thing 3. No person has a privilege that another shall not be a witness or should not disclose any matter or produce any writing, object or thing 36 B. CCP” (testimony of a witness) Section 2017(testimony of a witness)a): Any party may obtain discovery regarding any matter NOT P” (testimony of a witness)RIVILEGED that is relevant to the subject matter involved in the pending action II. P” (testimony of a witness)rivileges are strongest for third parties to the case III. FRE 501—general rule recognizing privileges IV. Hypos A. Attorney Client P” (testimony of a witness)rivileges 1. CL—client has the right not to disclose and to prevent an attorney from disclosing contents of confidential communication between them. a) CEC 954—adopts the same b) P” (testimony of a witness)roposed FRE 503—same 2. CEC 958—exception for relevant communications if suing lawyer a) If lawyer sues you, same exception B. Doctor Client P” (testimony of a witness)rivileges 1. CL—doctor required to testify 2. CEC 994—recognizes privilege. a) P” (testimony of a witness)atient, whether or not a party has privilege to refuse to disclose and to prevent another from disclosing confidential info between patient and doctor 3. P” (testimony of a witness)roposed FRE—no privilege 4. If suing doctor: a) CEC 1001—exception for relevant communications if suing your doctor. (testimony of a witness)1) If doctor sues, same exception applies C. P” (testimony of a witness)sychotherapist Client P” (testimony of a witness)rivileges 1. CL—no privilege for info given to psychotherapist 2. FRE 504—proposed psychotherapist, but not doctor 3. CEC 1014—privilege a) Exception if suing doctor – CEC 1020. (testimony of a witness)1) If doctor sues, same exception applies D. Clergyman Client P” (testimony of a witness)rivilege 1. CEC 1032 – penitential info made to a clergyman in the course of church and to a person authorized to hear the confessions may be kept secret a) CEC 1033 – penitent, whether or not a party, has privilege to refuse to disclose and to prevent another from disclosing a penitential communication 2. FRE – recognizes this privilege E. Accountant Client P” (testimony of a witness)rivilege 1. CL—no privilege exists 2. CEC—none 3. FRE—none F. Journalist/Source P” (testimony of a witness)rivileges 1. CL—no privilege for journalist not to disclose source 2. CEC 1070 – prohibits holding journalist, etc from contempt for refusing to disclose the source 37 1. CA--P” (testimony of a witness)eople hired by the attorney for consultation are protected by the attorney client privilege a) Must find some other privilege to make it work (testimony of a witness)1) Like work product protection or doctor client protection Marital P” (testimony of a witness)rivileges I. P” (testimony of a witness)rivilege against adverse spousal testimony A. Similarities between Fed and Cal 1. Witness is always the holder of this privilege 2. Critical date is when privilege is sought 3. Must be a real marriage a) Final decree of divorce will end marriage b) Can’t be a sham marriage 4. Covers all forms of info learned from spouse from date of marriage to day testimony is sought 5. Must be married on day privilege is sought B. Differences between Fed and Cal 1. Split on knowledge obtained before marriage a) CA—covered if marriage occurs before husband is arrested or formally charged b) Fed—protects info acquired before the marriage 2. Separation a) Fed—no privilege unless there’s a chance of reconciliation b) CA—privilege covers separation II. Generally A. P” (testimony of a witness)rivileges require valid marriage 1. Valid marriage before info was heard is needed 2. CL—people living together with a kid is considered marriage 3. CA—need marriage license B. Character Testimony considerations 1. Items of circumstantial evidence can come in through character testimony only if they shed light on knowledge, motive, etc. C. Victim-Spouse Exception 1. No marital privilege exists if witness is a victim of spousal abuse a) CL—husband could block wife’s testimony 2. CA—uses this exception even though wife is the holder of the privilege III. P” (testimony of a witness)rivilege on confidential communications between spouses A. Similarities between Fed and Ca 1. P” (testimony of a witness)arties must be married at time statement was made a) Fed-- Once privilege accrues, survives divorce and later failure of marriage (testimony of a witness)1) Dead marriage exception—no privilege if sham marriage at time statement made b) CA—privilege exists even if dead marriage 40 2. Must be a confidential communication a) Can’t be an act—only gestures and words used to communicate 3. Both are holders B. Exception 1. If communication about criminal activity planned or committed, can’t get wife’s help in crime P” (testimony of a witness)rivilege Against Self-Incrimination I. Generally A. 5th Amendment P” (testimony of a witness)rivilege 1. Definition: no person shall be compelled in any criminal case to be a witness against himself 2. Due process of law is applicable to states through the 14th Amendment II. P” (testimony of a witness)rivilege of the accused not to testify A. Generally 1. Can’t call D as a witness 2. CO-D can’t call D as a witness 3. P” (testimony of a witness)eople can exercise right even if not guilty 4. It’s a right not to go to the witness stand at all a) If D chooses to testify, he must stay there and answer questions (testimony of a witness)1) P” (testimony of a witness)rivilege is waived once on witness stand if questions are in scope of direct examination B. Only protected against testimonial 1. Right not to produce personal papers or objects 2. Right not to recall facts from memory and mention them 3. Complete immunity from subpoena-like obligation C. Exceptions 1. D may be compelled to supply information such as: a) Trying on clothing b) Lineups c) Scientific samples, such as blood d) Walking, handwriting, voice samples (testimony of a witness)1) For handwriting and voice, must tell D what to say 2. If D refuses to do the above, a) Refusal may be used as circumstantial evidence b) D may be held in contempt c) Force may be used, so long as it’s not brutal III. P” (testimony of a witness)rivilege not to disclose incriminating facts A. Generally 1. D can refuse to answer an incriminating question 2. Anytime government is asking D questions 3. Covers any testimonial answer that could be a link in a chain of circumstantial evidence that might be incrimination 4. Includes right not to produce papers that may be incriminating 5. Held only by humans 41 a) Not by corporations, etc b) Humans must reveal things about corporate type entities (testimony of a witness)1) Must turn over documents even if they tend to incriminate the D 6. P” (testimony of a witness)rivilege only applies to self a) Doesn’t cover (testimony of a witness)1) Non-criminal but disgraceful info (testimony of a witness)2) Questions exposing D to civil liability only (testimony of a witness)3) Questions regarding exposure of close friends B. P” (testimony of a witness)rivilege may be overruled if perfectly clear answers can’t have a tendency to be incriminating C. Getting around the privilege 1. Generally a) P” (testimony of a witness)rivilege doesn’t operate after jeopardy has attached if acquitted or convicted b) This avoids double jeopardy 2. Commonly a) Give witness an immunity (testimony of a witness)1) Answers will then not be used against D in any federal criminal proceeding 3. Types of Immunity a) Transactional—could not be prosecuted for the crime in a federal setting (testimony of a witness)1) Fed can’t get leads from it either b) Use Immunity and Derivative Use Immunity (testimony of a witness)1) If one part of fed gave use or derivative use immunity and another part launches a prosecution, they have burden of proof to show that they didn’t use any part of this case in the prosecution (testimony of a witness)2) Fed only gives this type of immunity (testimony of a witness)a) P” (testimony of a witness)rosecutor must show case presented is free of any aid from testimony given IV. State v. Federal Law for P” (testimony of a witness)rivileges Diversity case; CA code looked at  In the P” (testimony of a witness)rivilege section, a sentence was added—in civil actions P” (testimony of a witness)rivilege rules are based on state law (testimony of a witness)need to be a civil, diversity case w/ a question regarding privilege) Dead Man Statute  B4 1850—neither  nor  were allowed to testify  mid 1800’s—right for  or to testify  nearly every state has dead man statute o if one of the party’s dead, the other may not testify in ct o in CA, only if  was dead, then would  not be allowed to testify o CA has now abolished the dead man rule, but enacted another hearsay exception 42 Tuesday Dec 4, 01 Review Week I. Basic Concepts A. How to prove a point in court 1. Circumstantial evidence a) Testimony of circumstances that point to P” (testimony of a witness) b) An inference to a fact no one actually perceived (1) Ex: Gun used in murder found in P” (testimony of a witness)’s house (2) T  “P” (testimony of a witness)C” that implicates P” (testimony of a witness) (3) May be used to establish identity c) Issues regarding Circumstantial evidence (1) Must believe W (2) Must make an inference from the circumstance (3) W aren’t allowed to draw inferences from circumstantial evidence—no opinion testimony allowed 2. Direct evidence a) Eyewitness T. Someone perceived the fact. b) May be used to establish identity c) Issues: (1) Reduction of memory goes to the weight of the T, not the admissibility 3. Real evidence a) The thing itself b) If it’s direct and circumstantial, it’s real c) Fact brought into the courtroom and examined 4. An item of evidence may fit into more than one category depending on what it’s being used to prove II. Opinion Testimony A. Personal Knowledge Rule—W may only testify if he has personal knowledge of the matter 1. Can’t draw inferences from circumstances 2. Conclusory language is not allowed B. Opinion Rule—when a lay W is trying to convey a perception, it’s allowed if the perception is rationally based and helpful to a clear understanding of the T 1. Generally a) Must be impossible or difficult to explain the facts (1) Mannerisms, facial features (2) How old someone looks b) P” (testimony of a witness)hotographs (1) T saying the photo is the perp is okay if familiar with perp at the time of the crime c) Opinion must be rational 2. Opinion testimony without first hand knowledge a) Harris—present memory was not as sharp as it could be “P” (testimony of a witness)I think that’s him” 45 (1) Using conclusory language to convey reduced level of recollection—accepted (2) Shows honesty—affects weight b) Cox—W used language to tell what her impression was (1) We don’t want reasonable inferences of the witnesses—only circumstances. 3. Opinion testimony with first hand knowledge a) May go to opinion if it’ll give a clearer understanding b) Yazzi, reasonable belief that person was 16 c) Knight—D deliberately or accidentally fired gun at miller (1) D could testify that “P” (testimony of a witness)it was an accident” cuz he saw it (2) P” (testimony of a witness)olice couldn’t cuz they didn’t see it d) P” (testimony of a witness)ierce—people familiar with D could use opinion to say it was him when shown photo of perp. e) Davidson—when the W is using an opinion, there has to be a valid basis for the opinion (1) Car “P” (testimony of a witness)looked to be going 40 miles an hour” (2) Can’t rationally base on perception of the witness, cuz car was bearing down on him (3) Can’t judge speed if it’s coming directly at you III. Relevancy A. Relevant evidence may be excluded if probative danger outweighs probative value 1. P” (testimony of a witness)rejudice, confusion, misleading jury, waste of time, cumulative evidence B. Standard for relevancy—must have any tendency to prove fact 1. Direct evidence is always relevant 2. Evidence must be offered for something in issue for relevancy Hearsay Rule 6) Introduction a) FRE 801-- an out of court statement that asserts some matter and is offered in evidence to determine the truth of the matter asserted i) Basically, fact trier can only believe statements made by testifying witnesses ii) Cal rule the same b) May be written or oral i) But only hearsay if offered to prove the truth of the matter asserted ii) What’s the declaration trying to prove? c) Dangers of hearsay i) Ambiguity—maybe declarant meant something else ii) Insincerity—maybe he lied iii) Erroneous memory—maybe he had an honest belief, but remembered incorrectly iv) Inaccurate perception—maybe he perceived it badly 46 d) Though witness testimony is also suspect, it’s more reliable i) Under oath, so witness is under fear of perjury ii) Court may observe witnesses demeanor iii) Also, may put statement into context of larger story iv) Declarant can be cross examined v) No mistake in transmittal of the information e) Hearsay only keeps out statements offered for the purpose to determine credibility of the declarant—can’t be offered to prove truth of the statement. i) May show state of mind ii) May be offered just to show that it was made f) Ask yourself what the evidence is being offered to prove 7) Definition of Hearsay a) Fed/Cal Rule—same as above i) Everything may be hearsay—depends on why its being offered. (testimony of a witness)1) Ex: may offer B’s statement “P” (testimony of a witness)I’ve been shot” to show consciouness, but not that he’s been shot. (testimony of a witness)2) Ex: may offer “P” (testimony of a witness)watch out there’s water on the floor” to show evidence of notice given, but not that there’s water on the floor (testimony of a witness)3) May offer to show belief in the statement made ii) Definition of Out of Court statements (testimony of a witness)1) Any oral or written statement by someone other than the at trial witness (testimony of a witness)2) P” (testimony of a witness)rior statements by at trial witnesses, such as depositions in earlier trial iii) Definition of Truth of the Matter Asserted (testimony of a witness)1) May be verbal acts (testimony of a witness)a) Operative facts with legal consequences are not hearsay (testimony of a witness)oral contract, etc) (testimony of a witness)2) Verbal part of the act are not hearsay. (testimony of a witness)P” (testimony of a witness)hysical act is ambiguous, but words that follow it resolve the ambiguity) (testimony of a witness)a) Mere utterance of the words is enough to determine nature of the act. (testimony of a witness)b) Ex: O gives money to X and says “P” (testimony of a witness)this is to repay you for money you lent me” Not hearsay (testimony of a witness)c) Also, may be used to show declarant’s belief in the statement (testimony of a witness)3) Effect on hearer or reader—if statement is offered to show its effect, then not hearsay (testimony of a witness)a) Ex: to show that he had notice, certain knowledge, emotion, etc. (testimony of a witness)b) Usually these statements are admitted when issues is whether hearer had notice (testimony of a witness)c) Statement by arresting officer describing how he came to make the arrest is not strictly hearsay, but construed as such cuz of dangers of prejudice and irrelevancy (testimony of a witness)4) Declarants state of mind—statements to show his state of mind aren’t barred by hearsay rule (testimony of a witness)a) Ex; to show that declarant had knowledge of some matter (testimony of a witness)b) Also, declarants sanity and emotions (testimony of a witness)fear) may be shown 47 1. P” (testimony of a witness)ersonal knowledge not required 2. Admissible if made to a third party a) FRE—allows admissions to employee/ers 3. Must prove agency relationship with corroboration C. Types of Employees 1. Speaking agents may make admissions 2. Lower echelon employees a) If speaking on matter within employment okay if: (1) Employee is still working when he made statement AND (2) Statement was about things he was authorized to do 3. Disgruntled employees a) Allowed if still working for corporation 4. Applies even if employee is speaking to his employer IV. Admissions by Co-conspirators (testimony of a witness)Adoptive Admissions) A. Requirements: 1. Existence of a conspiracy 2. Statements made in furtherance of conspiracy 3. During the conspiracy 4. To other co-conspirators B. Generally: 1. Don’t need personal knowlege 2. Statements themselves can be part of the evidence to prove conspiracy a) But needs additional evidence b) P” (testimony of a witness)roved by a preponderance of the evidence Unavailability Exceptions I. Generally A. Unifying theme—hearsay, but can’t get info otherwise B. Hearsay statement was made that gives it more reliability C. Unavailability 1. Dying or ill 2. Outside jurisdiction 3. Whereabouts unknown 4. In courtroom, but unavailable a) P” (testimony of a witness)rivilege invoked b) Refusing to testify (testimony of a witness)FRE) c) Unable to remember stuff (testimony of a witness)FRE) 5. CEC—expert testimony establishes that testifying will be traumatizing = unavailable 6. NOT unavailable if due to wrongdoing of party II. Former Testimony Exception 50 A. Depositions 1. Any party can use a deposition of any W if the W is unavailable. a) Must give notice b) P” (testimony of a witness)arty offered against must have been at the depo 2. CEC—may use video depos of expert witnesses even if available 3. Unavailability specific to depos: a) CEC—150 miles; FRE—100 miles b) Memory lapse okay c) Fear of bodily harm—only FRE okay B. Former Trials 1. May be offered if: a) W is unavailable b) Cross examination with interest and motive similar and there’s a c) Substantial identity of issues and parties (1) CEC—only requires similar interest and motive, not identity (a) Limited to civil actions (2) May be predecessors in interest 2. Criminal Cases a) Evidence only allowed against government 3. Grand Jury Testimony a) D can only use it if he’s unavailable and not invoking his right not to testify b) May be offered against government 4. P” (testimony of a witness)reliminary Hearings a) May be offered. b) Concern is that lawyers are not as prepared at this stage c) Hogan thinks shouldn’t be considered similar motive and interest 5. Remember probative value rules III. Declarations Against Interest A. Requirements 1. Declarant must be unavailable 2. Personal Knowledge is required 3. Statement must be against interest at time it was made 4. May be pecuniary, proprietary or penal interest a) Criminal cases: (1) Declaration against penal interest (2) Must have corroborating evidence that would support truthfulness B. If W’s statements have neutral or favorable statements coupled with the declaration: 1. Wigmore—let in self-serving and neutral 2. McCormick—let in the neutral 51 3. Jefferson—carve it up—let in only declaration a) Hogan review view IV. Dying Declarations A. General Requirements: 1. Statement made upon impending death 2. Relating to cause or circumstance of death 3. Must satisfy personal knowledge rule B. Common Law 1. Declarant must be dead 2. Restricted to criminal homicide cases 3. D must be accused of killing declarant C. CEC 1. Declarant must be dead 2. May be used in any cases D. FRE 1. Declarant must be unavailable as a W a) Need not be dead 2. Only available in murder prosecutions a) OR civil suit against murderer E. Declarant’s belief that she might dies is: 1. A question for the trier of fact 2. P” (testimony of a witness)roved by a preponderance of evidence V. Statement of P” (testimony of a witness)ersonal or Family History A. Generally: 1. Declarant must be unavailable 2. No personal knowledge required 3. May give statements of another person if: a) Related or intimately associated with other’s family B. Additional CEC requirement 1. Needs to be trustworthy VI. Residual Unavailability Exception A. Generally: 1. Statements not covered can be offered if: a) Offered as evidence of material fact AND b) Is the best evidence possible c) P” (testimony of a witness)rocured through reasonable efforts AND d) Serves interest of justice 2. Needs advance notice and intent in offering statement 3. Must have equivalent circumstantial guarantees of trustworthiness B. Grand Jury Testimony 1. Still can’t be offered against D C. Criminal Cases and 6th Amendment 1. Statements must have indicia of reliability 52 VI. P” (testimony of a witness)resent Memory Refreshed/P” (testimony of a witness)ast Recollection Recorded A. Generally: 1. W can use writing to refresh his memory while testifying a) This is P” (testimony of a witness)ast Recollection Recorded B. Requirements of P” (testimony of a witness)ast Recollection Recorded 1. Writing must have been prepared by W 2. At or near time perception was made 3. W must have made or adopted the statement 4. Other party can cross examine witness based on writing a) CEC—must procure the writing unless it’s not in control of the W and not reasonably procurable C. P” (testimony of a witness)resent Memory Refreshed 1. Declarant can be available 2. Document may be read into evidence, but not received. 3. W is the evidence—this only helps him remember 4. P” (testimony of a witness)ast Recollection Recorded requirements apply 5. CEC—document must be authenticated. D. Primo v. Kenny 1. Double hearsay case 2. A observed brand on bull and W (testimony of a witness)cop) wrote down what person called out 3. Common Law—must bring both parties into court a) Cooperative past recollection recorded 4. Fed—don’t need the first guy cuz you can use present sense impression exception a) Still need the guy who wrote down the statement b) May argue biz records exception VII. Business Records Exception A. Requirements: 1. Unavailability not required 2. P” (testimony of a witness)erson making record must work for business 3. P” (testimony of a witness)erson making record must be under a business duty to reliably record the information 4. Must be a typical business document made in the regular course of business 5. Absence of entry in business records is not hearsay B. Admissibility Issues 1. Records made after litigation underway usually inadmissible 2. Unless made routinely 3. Make sure motive in preparing record is not for anticipation of litigation 4. Must be trustworthy for exception to kick in C. Hospital Statements 1. Routine diagnosis okay even if in opinion form 2. FRE—allows psychiatric diagnosis 55 D. Hearsay Issues 1. The exception lets in some double hearsay a) Both declarants must have been under duty to business when making statement b) Outsider statements must fall within another exception 2. Look for statements against interest—those aren’t biz exceptions a) Ex: Welfare file—person wrote that a field representative reported that during an interview Wasserman said “P” (testimony of a witness)my deal with Ms. Kelly is that she can live in the house rent free.” (1) ‘Wrote’—biz record exception (2) ‘Report’—biz record exception (3) ‘Said’—admission of party opponent (4) ‘Deal’—oral offer—not hearsay 3. Differentiate between different exceptions a) Hospital admission note: “P” (testimony of a witness)patient was crossing street and auto ran into another auto, hitting patient” Signed, Doctor. (1) Not biz exception cuz not an entry significant to regular course of business. (2) But you could use past recollection recorded if you put doctor on the stand and refresh his memory b) Any biz record can be a past recollection recorded if you bring in the person who wrote the record. VIII. P” (testimony of a witness)ublic Records Exception A. Generally: 1. Declarant may be available 2. Record must be made in routine operation of business 3. P” (testimony of a witness)erson must have duty to report 4. Entire record is admissible, even if it includes opinions a) If concerned about opinion, focus on exclusion cuz of lack of trustworthiness 5. May be excluded for lack of trustworthiness B. Exceptions: 1. Criminal cases: a) Matters observed by police officers unless mundane entry without regard to potential litigation C. P” (testimony of a witness)revious Convictions 1. Must be a felony to be admissible 2. Only convictions may be admissible—no acquittals 3. CEC—may enter if judgment was based on nolo contendere plea Expert Witnesses I. Requirements: A. Specialized knowledge will help trier of fact. 1. No calling experts for common knowledge 56 B. Witness must be qualified 1. Experience, education, or training C. T must be based on sufficient facts or data D. T must be a product of reliable principles and methods E. Must be helpful II. Generally: A. Opinions are admissible 1. May be based on inadmissible hearsay if experts in the field generally would rely on the facts 2. Facts that are inadmissible can be disclosed to the jury if probative value outweighs probative danger 3. On cross examination, may disclose the ‘inadmissible’ facts 4. Opinion may be on the ultimate factual issue a) But expert can’t testify whether D had the mental state constituting element of the crime in criminal cases b) Can’t testify to the ultimate legal issue—trier of fact must decide B. P” (testimony of a witness)ersonal knowledge not needed III. Tests for establishing reliability A. Daubert Test—evidence must be scientifically valid 1. Factors a) Has the theory been tested? b) Subject to peer review? c) Rate of error? d) Generally accepted? 2. Evidence must be relevant to an issue in the case 3. Applies to all expert testimony 4. FRE and CEC use this B. Kelly Test—Are the new scientific techniques reliable? 1. Factors: a) Reliability of method must be established b) Correct scientific procedures were used c) Frye Test 2. CEC applies this to the Daubert Test C. Frye Test—only evidence that’s generally accepted may be admitted 1. Use in removal cases. IV. Hypothetical Questions A. Requirements: 1. Includes facts already in evidence or those jury can logically infer 2. May be based on inadmissible evidence 3. May be based on another W’s opinion V. P” (testimony of a witness)ublications 57 5. Amount of punitive damages II. Character as Circumstantial Evidence A. Civil Cases 1. Character evidence is generally inadmissible a) Can’t show carefulness in negligence cases 2. May prove action was in conformity with habits a) Must have: (1) P” (testimony of a witness)robative value (2) Repetitive pattern (3) Sufficient amount of incidences to show that it exists b) Must be proved by personal knowledge of D’s habits (1) Bring in W who has seen D’s habit (2) Can’t use opinion or reputation evidence 3. Evidence of misconduct may be used for: a) P” (testimony of a witness)lacing crime in context by describing other events in the same transaction b) P” (testimony of a witness)roving larger plan or conspiracy c) As evidence of M.O. if crimes are strikingly similar d) Showing intent (testimony of a witness)malicious, deliberate, etc) e) Impeachment f) P” (testimony of a witness)reparation, knowledge, absence of mistake or accident g) Issues: (1) Only admissible if upon issue in controversy (2) Balance probative value and danger (3) Must give notice of using other crimes evidence and limiting instruction B. Criminal Cases 1. Generally character evidence is inadmissible a) Habits are admissible (testimony of a witness)see above) b) Misconducts are admissible (testimony of a witness)see above) 2. Evidence of D’s Good Character a) Only D is allowed to first give evidence of his good character (1) Trait must be relevant to the crime charged (2) P” (testimony of a witness)roved by reputation and/or opinion (testimony of a witness)“P” (testimony of a witness)Have you heard?”) b) Cross Examining (1) If reputation W, only cross x is reputation (2) If opinion W, cross x may use acts, opinion, or reputation (a) Can ask “P” (testimony of a witness)have you heard” and “P” (testimony of a witness)did you know” c) Rebutting—prosecution is limited to trait, not type of W C. Victim’s Character 1. D may show victim’s character in certain circumstances a) Requirements: (1) D is charged with murder, assault or claims self defense 60 (2) FRE—proof by reputation and opinion only (3) CEC—reputation, opinion, and specific acts 2. If D shows V’s propensity for violence a) P” (testimony of a witness)rosecution can rebut with V’s good traits (1) May bring in own witnesses or cross x D’s witness b) P” (testimony of a witness)rosecution can show D is violent 3. If D claims self-defense a) FRE—P” (testimony of a witness)rosecution can show V had peaceful character 4. Rape Cases a) Can’t go into sexual history of victim b) Both civil and criminal trials c) Unless D had a sexual relationship with V III. Summary A. P” (testimony of a witness)rosecution’s Case in Chief 1. May use misconducts to show pertinent traits such as: a) Dishonesty, not law abiding, etc 2. Evidence of other crimes inadmissible solely to prove criminal disposition a) But admissible under misconduct theory to show other stuff like MO and intent B. Only D may raise character as an issue in criminal cases 1. But jury can determine type of person by specific acts (testimony of a witness)misconducts) C. P” (testimony of a witness)in down prosecution to show exactly why misconducts are being used to make sure it’s really relevant Impeachment of Witnesses I. Impeachment Generally A. Definition: Technique to show W’s flaws, not testimony’s flaws 1. Destroys credibility—shakes confidence of the W B. Technique 1. Recognize that credibility of each W and hearsay declarant might be an issue 2. Spot relevance of some fact about the W or declarant related to credibility 3. Fit fact into one of the categories of impeachment 4. Ascertain stage at which impeachment may be carried out a) Safe rule—ask during cross x and then use extrinsic evidence II. Impeachment by Defective Capacity A. W may be impeached if he has a sensory or mental defect 1. Why can’t W remember or see? a) Senile, immature, medicated, excited or stressed, preoccupied, language barrier, etc B. Stage of Impeachment 1. May directly go into extrinsic evidence 2. Or use the safe rule 61 III. Impeachment by Bias A. W may want one party to win or have an ulterior motive 1. Types: a) W may be hostile to one party b) Self interested in outcome c) Favor one side (testimony of a witness)paid experts, etc) B. Stage of Impeachment 1. Use safe rule if W made the biased statement—ask on cross first. 2. Can go directly to extrinsic evidence IV. Impeachment by Bad Character A. Generally 1. W may be impeached by showing he’s untruthful 2. May use reputation or opinion evidence to impeach 3. Stage of Impeachment a) Direct resort to extrinsic evidence (1) W2 may state his opinion of W1 or give W1’s reputation for impeachment purposes b) May only refer to specific acts on cross x B. FRE—Convictions and Specific Acts 1. Convictions a) W may be impeached if criminally convicted of certain crimes (1) Issues (a) W can explain circumstances of conviction (b) Can’t use if pardoned b) W not convicted — can’t use extrinsic evidence for specific acts to impeach for untruthfulness (1) May only ask on cross x, (2) Use this for bad acts (3) May only prove untruthfulness, not impeach (4) Look at specific acts below c) Conviction for Untruthful Crimes (1) May be felony or misdemeanor (a) P” (testimony of a witness)erjury, false statement, fraud, embezzlement, etc (2) Can impeach him in civil/criminal cases (3) Safe rule (4) Ten year time limit from date of conviction d) Conviction for non truth element crimes (1) Must be felony (a) Felony = 1 plus year of jail time (b) If not, impeach by specific acts (2) Court has discretion to let in under 352 (a) If W is D, usually excluded (3) Safe rule (4) Not admissible after 10 years unless high probative value 62