California Summer 2009 Bar Exam Evidence: FRE & California Distinctions; Victor Gold

1. For what purpose?
a. To prove char. b/c char. is at issue
b. To prove char. as circumstantial evid. of person's conduct in question
c. To impeach/support witness's credibility
2. What method or technique is used to prove char.?
a. Specific acts of conduct
b. Opinion
c. Reputation
3. Civil or crim case?
4. Does evid. prove a pertinent char. trait?

Offers to pay NOT admissible

BUT, unlike settlement offers, related stmts ARE admissible

Where no claim is asserted yet

Where no dispute as to liability/damages

Evidence of safety measures or repairs after accident NOT admissible to prove:
1. culpable conduct
2. defective product design in products liability

BUT admissible to prove other things

MAJOR EXCEPTION: defense of no feasible precaution

1. Liability insurance
2. Subsequent remedial measures or repairs
3. Settlements, offers to settle, pleas
4. Payment or offer to pay med expenses

Distinguish from char evid

MUST be frequently repeated conduct

1 general---depends
2 prior accidents or claims---NO, BUT 2 exceptions
a. pattern of fraudulent claims
b. preexisting conditions
3 to prove intent---yes
4 to rebut evidence of impossibility---yes
5 comparable sales to establish value---yes
6 habit---yes, BUT distinguish from char.
7 routine practice---yes
8 industrial custom to prove negligence standard of care---yes

Usually NOT relevant

EXCEPTIONS to prove:

1 pattern of P bringing fraudulent claims
2 preexisting conditions

Where there are certain similarities btw evid. and the people and events at issue

1 sexual assault OR child molestation

2 where ct had admitted evid. of victim's char. offered by D, prosecution can prove that D has same char. trait

NOT admissible to prove conduct EXCEPT sexual assault OR child molestation

Admissible when char. is in issue

Defamation
Negligent entrustment
Child custody

ALL THREE

Specific instances of conduct
Opinion
Reputation

1 Says something general about a person
AND
2 conveys a moral judgment

Char. says something general about a person AND conveys a moral judg.

Habit describes specific conduct and does NOT make a moral judg.

1 cases of sexual assault, child molestation, prosecution can offer first, even on case-in-chief direct

2 where ct has admitted evid of victim's char offered by D, prosecution can be first to offer evid that D has same char trait

Reputation AND opinion

NOT spec instances of conduct

ALL 3

1 IF D offers evid of victim's char, prosecution can rebut

2 In homicide case, IF D offers evid that victim attacked first, prosecution may offer evid of victim's char for peacefulness

Crim

-Reputation and opinion, fine
-Specific instances of conduct ONLY IF
---EITHER 3rd party is source of semen or injury
---OR prior acts of consensual intercourse btw D and alleged victim

Civil

-All 3 admissible IF probative value outweighs unfair prejudice
-For reputation, ONLY IF P (not victim) put her reputation at issue

Motive
Intent
Mistake, absence of
Identity
Common plan or scheme

Similarity AND uniqueness

Personal knowledge
Present recollection
Communication
Sincerity (oath, affirmation)

For PK, ask, does fact perceived = fact testified to?? Yes--->PK.

For hearsay, ask, does the witness quote someone or explicitly refer to someone's out of court stmt? Yes--->hearsay

1 Adverse witness
2 Hostile witness
3 Witness needing help

When witness reads directly from doc to jury

1 Witness had PK of facts
2 Doc was made by witness OR under witness's direction OR adopted by witness (initialing a doc)
3 Doc was written at time when facts were fresh in witness's memory
4 Accurate doc when created
5 Insufficient recollection by witness, so needs doc

1 IF rationally based on witness's perception

2 AND helpful to trier of fact; i.e., would give jury MORE info than if testimony were limited to mere perceptions

NO legal conclusions

1 Opinion helpful to jury
2 Witness qualified
3 Witness must believe in opinion to reasonable certainty
4 Opinion must be supported by proper factual basis
5 Opinion must be reliable on principles that were reliably applied

1 PK
2 Admitted evid
3 Inadmissible evid reasonably relied upon

1 Peer reviewed and published
2 Tested and subject to retesting
3 low error rate
4 reasonable level of acceptance

Admissible to prove anything stated therein SO LONG AS accepted authority in the field

Evid to support cred admissible ONLY AFTER cred is attacked first

Prior consistent stmts admissible for all purposes IF

EITHER made before bribe
OR made before inconsistent stmt

1 is source of impeachment extrinsice evid OR testimony at this proceeding by witness being impeached?

2 IF extrinsic, is it admissible given impeachment technique?

3 any other foundation requirements??

Extrinsic evid NOT admissible to impeach on collateral matter

IF given under oath at trial/deposition

Otw, hearsay and inadmissible IF OFFERED TO PROVE TRUTH

Extrinsic evid admissible ONLY IF witness given opportunity to explain or deny at some point during trial

Excusing witness take away opportunity, unless subject to later recall

1 Contradiction (collateral matter)
2 Prior inconsistent stmt
3 Evid of bias, motive, intent
4 Conviction for crime involving false stmts
5 Conviction for crime NOT involving false stmts
6 Non-conviction misconduct evid bearing on truthfulness
7 Reputation and opinion regarding truthfulness

ONLY if witness given opportunity to explain or deny

NO weighing UNLESS conviction older then 10 yrs

Felonies, admissible to impeach BUT ct weighs unfair prejudice against probative value

Misdemeanors NOT admissible if no false stmts

-Admissible in civil and crim case IF acts involved lying
-NO extrinsic evid; ONLY on cross

Yes.

1 Find the stmt
2 Ask what it is offered to prove; if tough, consider who offered the evid and what it would be relevant to prove in that party's case
3 Given what it's offered to prove, would jury be misled by this evid if the out of ct speaker was lying or mistaken?

If out of ct stmt has independent legal significance (such as "I accept the offer" in a K case), then NOT hearsay

1 Independent legal significance
2 Stmt offered to show effect on listener
3 Stmt offered to show speaker's knowledge of facts stated
4 Stmt is circumstantial evid of state of mind

1 Admission of party opponent
2 Prior inconsistent stmt given under oath at trial or deposition
3 Prior consistent stmt offered to rebut charge of recent fabrication or improper influence or motive
4 Stmt of identification of a person made after perceiving the person

Stmt by

1 authorized spokesperson of party (authorization express OR implied)

OR

2 employee of party concerning matter within scope of employment AND made during relationship

1 Party AGAINST whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person AND the motive to conduct that exam was similar to the motive the party has now

OR

2 for CIVIL case, party against whom the testimony is now offered was not present in the earlier proceeding BUT has a close privity-type relationship w/someone who was a party to that earlier proceeding AND who had an opportunity AND a similar motive to examine witness in that earlier proceeding

Declarant MUST be UNavailable

IF:

1 ct exempts declarant from testifying due to privilege
2 Declarant is sick/dead
3 proponent of stmt cannot procure declarant's attendance by process or other reasonable means
4 declarant refuses to testify despite ct order

OR

5 Declarant's memory fails

Hearsay stmt admissible IF, AT TIME IT WAS MADE, stmt was against:

1 financial interest of declarant
OR
2 would have subjected declarant to crim liability

IF stmt is offered to exculpate accused, MUST have corroborating evid

Declarant MUST be UNavailable

Hearsay stmt by one believing he is about to die AND describing cause or circumstances leading to impending death

Admissible in ANY civil case

Admissible in crim ONLY for homicide prosecution

Declarant MUST be UNavailable (though not necessarily dead)

Stmt relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition

Declarant CAN be available

IF stmt describes event or condition made while declarant was perceiving the event or condition OR immediately thereafter

NO emotional state required (unlike excited utterance)

TIMING MATTERS

Declarant CAN be available

Admissible to show condition or state of mind

BUT stmt describing a memory or belief is NOT admissible to prove the fact remembered or believed

Declarant CAN be available

**Jury can infer action in accordance with the intention

Admissible IF made for AND pertinent to med diagnosis or treatment

Declarant NEED NOT BE THE PATIENT; can be anybody

Declarant CAN be available

Admissible IF:

1 record of events
2 kept in course of regularly conducted business activity
3 made at or near the time of matters described
4 by person w/knowledge of facts in that record
5 it was regular practice of business to make such record

Declarant CAN be available

Admissible if within ONE of the following:

1 record describes activities of the office
2 record describes matters observed pursuant to duty imposed by law
OR
3 record contains factual findings resulting from investigation made pursuant to authority granted by law, UNLESS untrustworthy

BUT BUT BUT prosecution canNOTNOTNOTNOTNOT use 2 or 3 in crim case

Declarant CAN be available

Hearsay stmt describing a felony conviction admissible in BOTH civil AND crim to prove any fact essential to judgment

BUT when offered by prosecution for purposes ""other than impeachment"", judgment against persons other than accused are NOT admissible

Declarant CAN be available

CC excludes an out of court stmt IF

1 declarant does not testify at trial
2 is NOW UNavailable
3 stmt is testimonial
AND
4 D had no chance to cross-examine declarant about stmt when it was made

Stmts about ongoing emergencies are NOT testimonial

Low: sufficient to sustain a finding

Some conflicting evid is okay

1 admission
2 eyewitness testimony
3 expert
4 lay opinion
5 circumstantial evid
6 genuine examplar

Authenticity established IF doc:

1 is 20 years old or more
2 does not on its face present any irregularities
AND
3 was found in place of natural custody

certified public docs
official publications
newspapers
periodicals
business records
trade inscriptions

Tag or label that purports to have been attached in course of business and indicates ownership control or origin

e.g. Pepsi trademark

Proponent must lay chain of custody showing that this it the specific item proponent claims it to be

Applies where evid offered to prove the contents of the writing, and rule requires ORIGINAL, BUT EXCEPTIONS:

Voluminous docs: can be summarized IF original available for inspection

1 originals
2 duplicates: copy of original produced by the SAME IMPRESSION used to create the original (e.g. carbon copy) OR by a machine
3 testimony regarding contents of writing ONLY where original lost or destroyed AND no bad faith by proponent of testimony

NOT admissible where there is a genuine question as to authenticity of original

1 Atty-client
2 spousal
3 psychotherapist-patient
4 social worker-client

Communication btw atty and client or their reps intended by client to be confidential AND made to facilate legal services

Communication btw corporation employee and corporation's atty privileged WHEN corporation authorized the employee/agent to communicate to atty

1 prof services sought to further what client knew or should have known to be a crime or fraud
2 communication relates to alleged breach of duty btw atty and client
OR
3 two or more parties consult an atty on a matter of common interest and the communication is offered by one party against the other