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EVIDENCE

One Issue: Is the evidence admissible? (RECIP(e) H)

1. FORMALITIES – The procedure used to introduce evidence properly.
2. RELEVANCE (Logical, Legal, Reliable, Judicial Notice) – Makes material fact more or less likely to be true and is not unduly prejudicial and is reliable.
3. EXTRINSIC POLICIES (Liability Insurance, Subsequent Remedial Measures, Settlement offers, Medical expense payment offers, Offers to plea bargain) – Inadmissible for proof of issue at hand.
4. CHARACTER EVIDENCE – Cannot be used to prove conduct unless exception applies.
5. IMPEACHMENT (Felony conviction, Untruthful acts, Reputation, Bias, Inconsistency, Incompetent, Contradictions) – Unreliable witness
6. PRIVILEGES – Barred from being forced to testify
7. HEARSAY – Not admissible unless an exception applies

FORMALITIES

1. Type of Questions
   1. Leading: Only on Cross examination or for Preliminary, Introductory and Non-Crucial Matters – Only when Witness is having a memory problem, examining an adverse/hostile W
   2. Other improper: Misleading, Compound, Argumentative, Conclusory, Cumulative, Unduly harassing/embarrassing, Assuming facts not in evidence/
2. Refreshing Recollection
   1. Any writing
   2. W can’t read from, but may examine silently and then return before speaking
   3. Adverse party can cross-examine and introduce
3. Past Recollection Recorded
   1. Personal knowledge
   2. Timely made by W when fresh in mind
   3. If reliable
   4. and necessary

RELEVANCE

1. Logical Relevance – Tends to prove or disprove a material fact in dispute
2. Legal Relevance – Probative value outweighs undue prejudice, confusion of issues, misleading nature, waste of time.
3. Reliability of evidence:
   1. Testimony witness
      1. Personal knowledge
      2. Under oath/affirmation (sworn in)
      3. Capacity (know difference between truth and falsehood)
      4. Lay witness – personal knowledge/understanding
         1. Adequate opportunity to perceive
         2. Opinion required to communicate witness’s perception
         3. Matter is within common experience (drunk, odors (smelled like pot), appearance, condition)
      5. Expert Witness
         1. Qualified as expert by court
         2. Proper basis of opinion:
            1. Personal observation, OR
            2. Use of skills to review of documents of third party, IF
            3. Opinion based upon established, reliable treatises or established standards in the field.
      6. Dead Man Acts
      7. Unavailable witness
   2. Items must be authenticated
      1. Writings – Author personal knowledge, public records, ancient writings, self-authenticating docs.
      2. Voices – Hearer’s personal knowledge, distinctive characteristics, telephone transactions
      3. Physical Objects – Observer’s personal knowledge, distinctive characteristics, chain of custody (tampering)
   3. Judicial Notice – Indisputable fact that is common knowledge, easily verifiable of unquestionable accuracy. Evidence substitute. [Civil = conclusive; Criminal = persuasive, not conclusive (Judge cannot tell jury *how* to interpret evidence)]
      1. BEST EVIDENCE RULE=
         1. To prove contents of writing
         2. The original writing itself (or duplicate original)
         3. Must be produced
         4. Or shown unavailable
         5. By proponent
         6. Unless writing refers to a collateral issue (BER not applicable to non-controlling issue)

EXTRINSIC EVIDENCE – For matters of justice and the functioning of society, admission of this evidence is against public policy.

1. Liability Insurance – Admitting this would discourage people from carrying insurance.
2. Subsequent Remedial Measures – Admitting this would discourage improvements or repairs. Inadmissible for purposes of showing negligence or culpability. May be used to prove:
   1. Ownership or control
   2. Feasibility of precautionary measures
   3. Impeachment
   4. Supporting evidence in Strict Liability actions.
3. Offers to Settle/Compromise – Admission discourages out of court settlements. Inadmissible unless used to:
   1. Show bias of witness
   2. Explain a delay in undue delay hearings
   3. Show obstruction of justice.
4. Offer to Pay Medical Expenses – Admissibility discourages humanitarian charity. Inadmissible to show liability.
   1. Federal – “I’m sorry, let me pay the doctor bill” = “I’m Sorry” admissible admission of liability; “Let me pay..” inadmissible offer to pay medical bills.
   2. California – “I’m sorry, let me pay the doctor bill” = whole statement inadmissible.
5. Offers of Plea Agreement – Admitting evidence would discourage plea bargaining.
   1. Inadmissible in either criminal or civil cases, UNLESS
   2. May be used to prove perjury or to impeach a witness

CHARACTER EVIDENCE – Evidence of a person’s character or disposition is inadmissible proof of the conduct of that person, unless an exception applies. EXCEPTIONS:

1. Not used to prove conduct (trying to establish knowledge or character, not prove an act)
2. Defendant offers to show own character
   1. FED = no specific acts; prosecution may rebut
   2. CA = Allows specific acts; prosecution may rebut
3. Defendant offers on character of victim
   1. FED & CA = D offers; Prosecution may rebut
   2. RAPE – evidence of victim character only if:
      1. To show D is not source of semen
      2. To show consent
      3. Must first be made by written motion and offer of proof before the judge in camera.
4. Circumstantial Evidence – to show one of the following:
   1. Opportunity
   2. Intent/Knowledge absence of mistake
   3. Modus operandi, preparation, common plan
   4. Identity (distinct characteristics)

IMPEACHMENT (CARBIC C)

1. Conviction
   1. Prior Felony Conviction within 10 years
   2. CA also allows moral turpitude misdemeanor convictions
2. Acts – Prior bad acts that show propensity of lack of truthfulness
3. Reputation or Opinion – FED ONLY – established by cross exam or extrinsic evidence.
4. Bias – NEVER collateral issue since it goes to core credibility. CA – must give W opportunity to explain or deny evidence of bias. Either extrinsic or by cross exam.
5. Inconsistency – Cross exam or extrinsic evidence of prior inconsistent statement (does not have to be contradiction, just inconsistent)
6. Competency – Attack on capacity or reliability.
7. Contradiction (Collateral Mater Rule): Extrinsic evidence not obtained on cross exam is inadmissible to impeach unless it goes to a material matter and W given opportunity to explain or deny evidence.

PRIVILEGES – Limits on forced testimony/ Ability to testify

1. Attorney-Client
   1. Holder: Client
   2. Applies to: All communication made in lawyer-client relationship
   3. Limitations: Only communications made in reasonable confidence
   4. Waiver: Only by act of client. Exceptions:
      1. Atty v. Client suits
      2. Crime or fraud
      3. Will disputes
2. Spousal Witness – ONLY IN CRIMINAL CASES
   1. Holder:
      1. FED/MAJORITY: Defendant
      2. MINORITY: Spouse of Defendant
   2. Applies to: Spouse of defendant
   3. Limitations: Current valid marriage; ends when marriage ends
   4. Exceptions: Inter-spousal torts, crimes, bigamy, adultery
3. Marital Communications
   1. Holder: Both spouses
   2. Applies to: All marital communications between date of marriage and date of separation/divorce.
   3. Limitations: Only communications made in reasonable confidence; Verbal communication only
   4. Exceptions: Crime/fraud; D introduces evidence
4. Doctor-Patient
   1. Holder: Patient
   2. Applies to: All communications made in course of treatment (consultation, tests, results)
   3. Limitations: Licensed Health Care Providers only
   4. Exceptions:
      1. Doctor v. patient suit
      2. Doctor appointed by court
      3. Crime/fraud
      4. Reports by social workers or public agencies
5. Clergy-Penitent
   1. Holder: Both clergy and penitent
   2. Applies to: All penitent communications
   3. Limitations: Clergy must be authorized to hear penitent confessions; Religion must be one where confession to clergy is a core part of religious practices. (Catholic: Yes, Baptist: No)
   4. Exceptions: None
6. Self-Incrimination
   1. Accused
      1. Holder: Accused
      2. Applies to: Option not to take stand
      3. Limitation: Only to avoid criminal prosecution
      4. Exceptions: Not applicable to Grand Jury, legislative or administrative hearings
   2. Witness
      1. Holder: Witness
      2. Applies to: Disclosure of matters that tend to incriminate witness
      3. Limitation: Only to avoid criminal prosecution

          

7. GENERAL CONSIDERATIONS
   1. Eavesdroppers:
      1. FED = May testify
      2. CA = Priv holder may stop eavesdropper testimony
   2. Known Third party presence to communication:
      1. Third party = agent/employee of privileged party = OK as long as presence advances purposes of privileged relationship.
      2. Third Party = non agent/employee = NO Privilege UNLESS 3^rd party qualifies for another priv (Spouse)
   3. COURT may assert on behalf of holder of privilege to further justice

HEARSAY (DAD SEE ME BOPP PICI)

1. GENERAL RULE: – An assertion made by an out of court declarant offered to the truth of the matter stated is inadmissible hearsay.
   1. Assertion (verbal or non verbal communication)
   2. Out of court
   3. Offered to prove the truth of the assertions in the statement itself
   4. Barred unless an exception applies
   5. May be barred by 6^th Amendment right to confront is reasonably expected to be used in criminal prosecution.
2. Exceptions (DAD SEE ME BOPP PICI)
   1. Declaration Against Interest
      1. Unavailable witness
      2. Against financial or penal interest
      3. Against interest at time stated
      4. Reasonable person would not say it unless it was true
   2. Admissions (FED= Non hearsay)
      1. Offered against party
      2. Party admitted culpability/liability
         1. Silence ONLY when reasonable person would have objected/denied
         2. FRE – Employee/Agent Statement allowed
         3. Co-Conspirator statement allowed is independent evidence of conspiracy exists.
   3. Dying Declaration
      1. Unavailable .. CA – MUST BE DEAD (FED – must only believe was dying)
      2. Statement when knew/believed death was imminent
      3. Relating to circumstances of death
      4. CA = Any kind of case; CL – homicide cases only.
   4. Sense Impression (FED ONLY – NOT CA)
      1. CA = CONTEMPORANEOUS STATEMENTS
         1. Explain, Qualify or Understand
         2. What declarant was doing at time of statement
   5. Excited Utterance
      1. Statement relating to a startling event/condition
      2. Said while still under stress of event
   6. Expert Cross-Examination
      1. During Expert cross examination
      2. Writings established as reliable
      3. May be read into evidence (not admissible as exhibits)
   7. Mental State
      1. Present
         1. To prove mental state if at issue (“I’m going to kill you”)
      2. Past
         1. Only admissible to prove declarant’s will.
   8. Equivalency (FRE)
      1. Trustworthy equivalent to other exceptions
      2. Relates to material facts
      3. More probative than other available evidence
      4. Other party properly noticed of the evidence to be offered
      5. Interest of justice.
   9. Business Record Exception
      1. Written statement
      2. Made in regular course of business (not in prep of case/trial – bias)
      3. Near time of receipt of info
      4. Declarant had personal knowledge
      5. Unless circumstances show untrustworthy/unreliable. (doctored books)
   10. Official Written Statement
       1. Written statement
       2. By public official
       3. Recording legal duties or activities of office
       4. Unless untrustworthy
   11. Past Recollection Recorded
       1. Written statement or record
       2. Personal knowledge and reliable source
       3. Made when facts were fresh
       4. No present recollection
       5. Declarant testifies writing represents accurate reflection
       6. May be read into evidence
       7. Opposing party may offer entire document into evidence.
   12. Prior Testimony
       1. CA = ANY prior inconsistent statement may be offered as substantive evidence of its truth.
          1. Statement under oath
          2. Formal hearing/ deposition
          3. Similar/Same issues and parties
          4. Unavailable
       2. CA & FED – CAN be used to impeach
   13. Physical State
       1. Past bodily condition
          1. FED – Only statements for purposes of diagnosis or treatment
          2. CA – any statement of past bodily condition said to anyone.
       2. Present (time of statement) physical state
          1. May prove existence of condition
   14. Identification
       1. Prior statement by W
       2. IDing a person
       3. With personal perception of person (sight, hear, smell, etc)
       4. CA – while event was fresh in W’s memory
       5. CA – W must testify and confirm authenticity of prior opinion
   15. Consistent Statement
       1. Prior statement of W
       2. Consistent with testimony
       3. TO REBUT a charge of untruthfulness, unreliability or bias.
   16. Inconsistent Statement
       1. Prior Statement of W
       2. Inconsistent with testimony
       3. Given under penalty of perjury
       4. At a deposition, trial or other formal hearing.