Evidence Outline for the California Bar Exam

FORM
1. Leading Question – Q’s which suggest an answer.
  1. Direct examination – not allowed except as to preliminary matters.
  2. Cross examination – allowed.
  3. Also allowed if a witness is frail or unable to answer due to physical infirmity, or when a witness is hostile.
2. Misleading Question – cannot be answered w/o making an unintended admission.
3. Compound Question – asks more than one Q at a time.
4. Argumentative Question – Q that contests the testimony of the witness and does not seek info from the witness.
5. Assuming facts not in question – Q that assumes facts which have not been presented as evidence.
6. Conclusory Question – calls for opinion/conclusion W is not qualified to make.
7. Non-responsive answer – W should respond to the Q asked. If W supplies info not elicited by a Q, the add’l info can be stricken as non-responsive i.e. do you know your name? Only permissible answer is yes or no, anything else can be stricken
8. Narrative – L must ask Q’s (can’t say tell me everything that happened) cannot be open ended
PURPOSE
1. Logical Relevance
  1. Tendency to make a material fact more or less probable than it would be w/o the ev
    1. Must relate to time, event, or person involved in the present litigation.
  2. Special Cases – previous similar occurrences may be relevant if probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice. Similar occurrences: Rhonda’s Custom Routine Habits Can Imply Similar Prior Causes
    1. Causation
    2. Prior False Claims or Same Bodily Injury: relevant to prove that:
      1. The present claim is likely to be false;
      2. P’s condition is attributable in whole or in part to the prior injury.
    3. Similar accidents/injuries caused by the same event/condition: admissible to prove:
      1. Existence of a dangerous condition
      2. D had knowledge of the dangerous condition;
      3. Dangerous condition was the cause of the present injury.
    4. Intent/state of mind – previous similar acts admissible to prove present motive or intent when such elements are relevant (i.e. when intent/state of mind at issue)
    5. Rebutting claim of impossibility
    6. Habit – relevant to prove that conduct in conformity with habit.
      1. Habit = person’s regular response to a specific set of circumstances.
    7. Comparable sales to establish value – must be same kind, time, and place
    8. Industrial/Business routine – to show entity acted in conformity w/ routine
    9. Industry practice as evidence of std of care – admissible to show adherence to or deviance from industry wide std of care, but not conclusive.
2. Legal Relevance – probative value vs. prejudicial effect
  1. Judge discretion if probative value is substantially outweighed by danger of
    1. Unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time.
  2. Public Policy Exclusions – relevant evidence excluded for public policy reasons
    1. Liability insurance: Admissible to show: ownership or control, to impeach, or as part of an admission.
      1. Inadmissible to show: fault, neg, or ability to pay
    2. Subsequent remedial measures: Admissible to show: ownership/control, feasibility, opposing party has destroyed evidence.
      1. Inadmissible to show: culpable conduct
    3. Settlement offers: Claim or threat of; AND must be disputed as to liability/amount;
      1. Inadmissible to show: fault/liability, or amount of damage; actual/offers compromises, offers to plead guilty and withdrawn pleas of guilt
      2. Admissions of fact/damage made in course of settlement decisions Inadmissible.
    4. Offers to pay hospital/medical expenses: Inadmissible, (BUT admissions accompanying offers are admissible.)
3. Character Evidence – CE may be offered as substantive, rather than impeachment evidence (i) to prove character when it is the ultimate issue in the case, OR (ii) serve as circumstantial evidence of how a person probably acted.
  1. Methods (Specific acts, opinion, reputation)
  2. Civil Cases – Not admissible unless character at issue in case
    1. 5 civil cases where character is at issue: defamation; negligent entrustment; fraud/deceit/misrepresentation; child custody; self defense).
    2. Method: specific acts, opinion, reputation
    3. Not admissible when offered as circumstantial evidence to infer conduct @ time of litigated event.
  3. Criminal Cases
    1. Character of DEFENDANT – Only accused may initiate (opening door); P cannot initiate ev of bad character of D
      1. Open door rule: accused offers evidence of good character in form of reputation and opinion to show disposition to infer innocence. This opens door for P.
      2. After D offers evidence of good character, P may respond by inquiry on cross-examination of D’s good character witness about any specific acts which would tarnish D’s rep for trait or  No extrinsic allowed for specific acts, only on cross (and MIMIC exception)
        
        Note: P may not call a W to testify re specific bad acts (limited to cross)
      3. After D offers good character E  Extrinsic E OK for bad rep or opinion – i.e. P may respond by calling W to testify to bad opinions or bad reputation of accused (NOT specific acts)
      4. P may use D’s past conduct to impeach D’s credibility as a W (D must take stand as a witness)
    2. Character of VICTIM –
      1. Homicide or assault (not rape): D may initiate w/ reputation or opinion testimony to establish self defense (when relevant to show D’s innocence); Only reputation or opinion
        
        P may counter w/ rep or opinion evidence of: V’s good character or D’s bad character for same trait.
        
        Specific act/conduct known/communicated to D b/4 event is admissible to show D’s state of mind
      2. Rape – in civil/crim proceeding, evidence of sexual behavior of V generally inadmissible.
        
        Crim cases: evidence of V’s sexual history to prove consent limited as follows:
        
        No opinion or reputation
        
        Specific instances of sexual behavior admissible only:
        
        If offered to prove that 3p was source of semen
        
        To show prior acts of consensual sex b/n V/D,
        
        Exclusion would violate accused’s constit rights.
        
        Note: P can introduce E of specific instances for any reason
        
        Civil cases: E of V’s sexual behavior admissible if not excluded by other rules and probative value substantially outweighs danger of harm to V and of unfair prejudice to any party.
        
        Procedure: for V’s sexual behavior to be admissible, D must give notice and an in camera hearing must be held.
    3. Admissible if independently relevant.
      1. Prior acts of misconduct/crimes (not charged) allowed when there is (1) MIMIC; (2) sufficient evidence to support jury finding that D committed prior act; and (3) probative value does not outweigh unfair prejudice (403):
        
        Motive (motive for crime to be charged),
        
        Intent (to show knowledge on part of D or to prove mental state)
        
        Mistake or absence of mistake,
        
        Identity: connects D to the crime
        
        MO: used to prove id (i.e. it’s D’s trademark/signature crime)
        
        Common plan or scheme (part of same transaction)
JUDICIAL NOTICE – recognition of a fact as true w/o formal presentation of evidence.
1. Facts appropriate for JN: cts take JN of indisputable facts that are matters of common knowledge in the comm. (notorious facts) or capable of verification (manifest facts – i.e. scientific principles)
2. Procedure: Party must formally request that notice be taken of a particular fact.
  1. Civil = conclusive.
  2. Criminal = Jury may accept or reject.
3. Must take notice of fed or state laws
4. May take notice of other facts or laws (i.e. municipal ordinances)
PRESENTATION
1. Real Evidence (actual physical evidence)
  1. Authentication – recognition or chain of custody.
  2. Balancing Test
2. Documentary Evidence – writing must be authenticated by proof that shows that the writing is what the proponent claims it is.
  1. Authentication (doc. is what it purports to be)
    1. Pleading or stipulation.
    2. Evidence of authenticity of writing
      1. Direct evidence
      2. Admissions (by party against whom it is offered)
      3. Eyewitness testimony – writing may be authenticated by one who sees it executed/hears it acknowledged.
      4. Handwriting verification – by non expert (lay witness) familiar w/ handwriting, or opinion of expert who has made comparison; trier of fact may also compare.
      5. Ancient documents:
        
        At least 20 years old
        
        In such condition as to be free from suspicion as to authenticity; and
        
        Found in place where such writing likely to be kept.
      6. Reply letter doctrine: letter written in response to a comm. sent to claimed author.
      7. Photographs: may be authenticated by a W familiar w/ the scene or person who took pic.
        
        Unattended camera: show cam was properly operating and photo developed from film of that cam
      8. X-rays: process used is accurate, machine in working order, and operator qualified to operate it. Custodial chain must be established.
      9. Medical test results
    3. Authentication of Oral Statement
      1. Voice identification
      2. Telephone conversation.
    4. Self-authenticating documents – extrinsic evidence of authenticity not req’d for:
      1. certified copies of public records,
      2. official publications (i.e. books/pamphlets from public authority such as DMV),
      3. newspapers,
      4. trade inscriptions,
      5. acknowledged docs (affidavit attached recognizing signature),
      6. signatures on certain commercial docs (pursuant to UCC)
      7. Certified business records.
  2. Best Evidence Rule – Party seeking to prove contents of writing must either (1) produce original document, or (2) account satisfactorily for its absence.
    1. Applicability: Rule applies where writing is (1) legally operative or dispositive instrument, or (2) knowledge of W concerning a fact results from having read it in the doc – i.e. W has no personal knowledge.
      1. Does NOT apply: facts to be proved exist independent from writing (i.e. W has personal knowledge), writing collateral to litigated issue,
    2. Definition of original – includes copies if uncontested.
    3. Secondary admissible if reasonable explanation for absence of original (i.e. loss/destruction, in possession of 3p outside jxd and unobtainable, in possession of adversary who fails to produce after due notice).
    4. Modifications to BER:
      1. Certified copies of public records are ok
      2. Voluminous documents: can offer summary, chart, etc if: voluminous originals would be admissible if offered, and opponent has access to originals
      3. Duplicates:
        
        CL: dups were copies
        
        FRE: dups are copies produced by any technique which avoids casual errors and accurately reproduces the original
        
        Under FRE, dups admissible to same extent as original unless:
        
        Genuine Q raised re authenticity, or
        
        Under circumstances, unfair to admit dup in lieu of original.
  3. Parol Evidence Rule – prior/contemporaneous agreements merge
3. Testimonial Evidence
  1. Competency of Witness
    1. W must possess 4 testimonial attributes: capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
    2. Fed Rules of Competency: W must have personal knowledge of the matter, and W must declare he will testify truthfully – usually thru oath/affirmation
    3. Dead Man’s acts: provides that a person interested in the event is incompetent to testify to a personal transaction/communication w/ deceased when offered against the rep or successors in interest of the deceased (NO FRE)
  2. Use of memoranda – A witness cannot read her testimony from a prepared memorandum, except in certain circumstances:
    1. Refreshing recollection: W may use ANYTHING (even hearsay) for purpose of refreshing her present recollection (but cannot read from writing).
    2. Past recollection recorded: Writing may be read into evidence if proper foundation is laid:
      1. W once had personal knowledge;
      2. Writing made by W or under his direction, or adopted by W;
      3. Writing timely made when matter fresh in W’s mind;
      4. The writing is accurate;
      5. W has insufficient recollection to testify
  3. Opinion Testimony.
    1. Lay witness – generally inadmissible.
      1. Exception: Admissible when it is (1) rationally based on W’s perception, (2) helpful, (3) and not based upon specialized knowledge.
      2. Examples – Appearance of a person, state of emotion, sense recognition, voice/handwriting identification, speed, intoxication.
    2. Expert Witness –
      1. Expert may state an opinion/conclusion if:
        
        Scientific, technical or specialized knowledge would assist trier of fact,
        
        W is qualified as an expert (i.e. possesses special knowledge, skill, experience, training, or education),
        
        Expert possesses reasonable probability re accuracy of opinion,
        
        Opinion supported by a proper factual basis:
        
        personal observation
        
        facts made known to expert at trial
        
        facts not known personally but supplied to him outside c-room and of a type reasonably relied upon by experts in field.
        
        Reliance via Daubert Test (low error rate, peer reviewed/published, capable of testing, and reasonable level of acceptance)
      2. Determined by trial judge by prep of ev
      3. Authoritative texts and treaties – expert may be x-examined re statements in any publication established as reliable authority by testimony of any expert or by judicial notice. Under FRE, these texts can be used to impeach and as substantive evidence subject to:
        
        Expert must be on stand when excerpt read from treatise; and
        
        Relevant portion read into evidence but not received as an exhibit.
  4. Cross Examination
    1. Scope – cross gen limited to scope of direct, including all reasonable inferences that may be drawn from it, AND testing the credibility of W.
      1. If want to Q beyond scope of direct, must call W as your own later
      2. Note: scope is usually a matter of judicial discretion.
    2. Collateral matters – cross-examiner bound by answers of W to questions re collateral matters
  5. Credibility – Impeachment
    1. Accrediting own witness – no bolstering own W unless there has been appropriate impeachment first.
      1. Allowed if PCS of identification.
    2. Impeachment.
      1. Methods:
        
        Cross examination
        
        Extrinsic evidence (putting other W’s on stand who will introduce facts discrediting his testimony)
      2. Impeachment Devices:
        
        Prior Inconsistent Statement (W has made statements inconsistent w/ present testimony)
        
        On cross or by extrinsic evidence (if not collateral matter)
        
        Foundation for Extrinsic Evidence – Wit at some point given opportunity to explain/deny the statement. (Except: inconsist statement by hearsay declarant – not offered for truth)
        
        Evidentiary effect – PIS are hearsay, admissible only for impeachment. But, if made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidenceoffered for truth.
        
        Interest, Bias or Motive.
        
        On cross OR by extrinsic evidence.
        
        Foundation-Witness must first be asked about facts on c-ex.
        
        Prior Conviction of Crime – must be felony/crime involving dishonesty (arrest/indictment not sufficient)
        
        On cross or by record of judgment
        
        Crimes of dishonesty – no discretion by ct to bar impeachment.
        
        Felony NOT involving dishonesty: ct has discretion to exclude if:
        
        Criminal D and P has not shown that conviction’s probative value outweighs its prejudicial effect, or
        
        Ct determines that conviction’s probative value outweighs its prejudicial effect.
        
        Remote convictions (> 10 years) not admissible.
        
        Foundation – none req’d.
        
        Specific Acts of Deceit and Lying – Bad Acts
        
        Only on cross.
        
        Allowed subject to Rule 403 balancing;
        
        Act must be probative of truthfulness (i.e. act of deceit or lying)
        
        Good faith inquiry on c-ex, extrinsic evidence not admissible (only on cross), no inquires re arrests.
        
        Bad Reputation for Truth and Veracity
        
        Only by calling other witnesses (W can state opinion but not refer to specific acts)
        
        Sensory Deficiency – extrinsic E or c-ex
    3. Impeachment of hearsay declarant – under FRE, credibility of s/o who does not testify but whose out of ct statement is introduced may be attacked.
    4. Impeachment on a collateral matter – prohibited
    5. Rehabilitation
      1. Redirect – witness may explain or clarify.
      2. Another witness may be called (for good reputation)
      3. Prior consistent statement – to rebut express or implied charge of recent fabrication, improper influence/motive. PCS comes in for truth.
PRIVILEGES
1. Applicable law.
2. General approach
  1. Privileged relationship?
  2. Confidential Communication?
  3. Holder of Privilege?
  4. Waiver?
  5. Exceptions – future crime/fraud, malpractice, and communication put at issue.
3. Relationships
  1. Attorney-Client – protects confidential communications, not physical evidence or pre-existing docs.
    1. Client holds privilege.
    2. Applies even after client’s death.
    3. Privilege does not apply:
      1. L’s services were sought to aid in planning/commission of something client should have known was a crime or fraud.
      2. Comm relevant to issue of breach of duty in a dispute b/n attorney and client.
  2. Physician-patient;
    1. Requirements:
      1. Professional relationship
      2. Info acquired during course of treatment;
      3. Info necessary for treatment (nonmedical info not privileged)
    2. Privilege does not apply:
      1. Patient puts his physical condition in issue (PI cases);
      2. Physician’s assistance sought to aid wrongdoing;
      3. Comm relevant to issue of breach of duty in dispute b/n physician and patient;
      4. Patient agreed by K to waive privilege
  3. Marital Privileges
    1. Spousal immunity: protects against forced testimony re anything; married person whose spouse is a D in a criminal case may not be called as witness by P.
      1. Valid marriage at time of trial (priv lasts only during marriage)
      2. Criminal case;
      3. Privilege belongs to witness-spouse.
      4. Priv can be claimed only during marriage, but covers info learned b/4 and during marriage.
    2. Privilege for Confidential Marital Communication: in any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged.
      1. Marital relationship must exist when comm. made
      2. Divorce does not terminate priv
      3. Comm must be made in reliance upon the intimacy of the marriage.
      4. Both spouses have privilege not to disclose, and to prevent other from disclosing.
      5. Privilege survives marriage but covers only statements made during marriage.
  4. Psychotherapist/Social Worker – Client Privilege: Works same as attorney-client privilege.
  5. Clergy/Accountant: similar to A/C privilege
  6. Journalist: no constit right for journalist to protect source of info.
  7. Government
HEARSAY
1. Definition – out of court statement, offered to prove the truth of the matter asserted.
  1. Must be an out of court statement by a person (not dog or testimony about what radar gun said)
2. Not Hearsay
  1. Statement NOT offered for truth
    1. Non assertive conduct.
    2. Verbal acts or legally operative facts – words spoken or written have relevant legal significance by virtue of being spoken/written
      1. Words of K, defamatory words, conspiracy, misrep, permission, cancellation
    3. Verbal objects – statement offered only as a symbol or identifier on an object
    4. Effect on listener – statement that shows why person who heard it acted or did not act a certain way;
      1. i.e. to prove notice in neg cases/to prove cop had PC to arrest
    5. Circumstantial Evidence of Declarant’s state of mind – (i.e. evidence of insanity/knowledge – “I’m Dracula” to prove insanity)
    6. Lie – not HS if introduced to show falsity of what was said.
    7. Impeachment.
  2. Statements that areNon-Hearsay Under the FRE
    1. Prior Statements by Witnesses (in Ct Stmt)
      1. Prior Inconsistent statement given under oath at a prior proceeding.
      2. Prior Consistent Statement offered to rebut a charge of recent fabrication or improper influence or motive.
        
        Stmt made b/4 any motive to lie/exaggerate arose;
        
        No oath req’d
      3. Prior statement is of Identification of a person made after perceiving him
    2. Admissions by a Party Opponent – PK NOT req’d
      1. Admission – Statement amounting to a prior acknowledgment by a party of a relevant fact offered by a party opponent. Does not need to be against interest
      2. Vicarious admissions – matter w/in scope of employment by EE/Agent/Co-Conspirator during relationship
        
        Principal/Agent; Partners; EE/ER; Co-conspirators (Stmt in furtherance of conspiracy when declarant participating in conspiracy)
      3. Adoptive admission – expressly/impliedly adopting or acquiescing in statement of another
        
        Silence – treated as an admission if: (1) party heard and understood the statement; (2) party was physically and mentally capable of denying statement; and (3) reasonable person would have denied the accusation.
3. Hearsay Exceptions
  1. Declarant Unavailable – Privilege, DL refuses, DL’s memory fails, DL is dead/sick, and proponent cannot procure DL’s attendance – Pneumonic: “Fuck Dying Declarations Against Family Wrongdoing”
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    1. FormerTestimony: testimony given in earlier proceeding admissible if:
      1. Party against whom testimony is offered had opportunity to examine and motive to conduct examination was similar, or
      2. Civil case Exception – party against whom testimony is offered was in privity w/ party to earlier proceeding.
      3. NO Grand Jury Testimony b/c no opp to cross
    2. Statement Against Interest: statement against DL’s pecuniary ($), proprietary (property) or penal interest(jail) at time when made;
      1. DL must have had PK of the facts and aware that statement against his interest when made
      2. Stmt exposing DL to crim liability and exculpating accused NOT admissible unless “corroborating circumstances” indicate trustworthiness
    3. Dying Declaration: Stmt under a sense of impending death;
      1. Must be Stmt regarding cause or circumstances of death
      2. ONLY Homicide or Civil
      3. Need not die
    4. Statement of Personal or Family History: made by family member or s/o intimately associated w/ family (i.e. re death, birth, marriage)
    5. Wrongdoing: Stmt offered against party who wrongfully procured DL’s unavailability
  2. Availability Immaterial.
    1. Present State of Mind: Stmt of DL’s then existing state of mind, emotion, sensation, or physical condition
      1. Usually used to show DL’s intent (declaration of present intent to do something in near future offered to infer future act was done).
      2. Admissible when state of mind is a material issue OR to show subsequent acts of DL.
    2. Excited Utterance: Startling event, made under stress of excitement of startling event (time lapse ok if still excited), Concerning facts of startling event.
    3. Present Sense Impression: Stmt describing or explaining an event or condition while DL perceiving event/condition or immediately thereafter.
      1. No appreciable time lapse
    4. Declaration of Past Physical Condition (statement to physician): Stmt made to medical personnel to assist in diagnosing/treating the condition;
      1. Must be pertinent to diagnosis/treatment (even if diagnosis is only for purpose of giving testimony)
    5. Business Records:
      1. Writing made in the regular course of business at or near the time of the event by one who is under a duty to record such information is admissible;
        
        Entry must be connected to the business.
      2. Only stmts that entrant/DL had personal knowledge OR w/in PK of s/o w/ duty to transmit such matters to entrant
        
        Note: Stmts of W’s or parties in police report NOT admissible b/c these ppl not under a business duty to convey info to police.
      3. Authenticity: custodian may testify that record is a bus record, OR certify in writing that it is a biz record.
      4. Lack of Biz Record may be used to show nonoccurrence of event
    6. Past Recollection Recorded: admissible if (1) the witness at one time had personal knowledge of the facts recited in the writing, (2) the writing was made by the witness, (3) the writing was timely made, (4) the writing was accurate, and (5) the witness has insufficient recollection at trial.
    7. Public Records/Reports: records, reports, or investigations involving activities of and an office or agency, made at or near the time of the event by one who is under a duty to record such information.
      1. Not admissible against D in criminal case
      2. Includes opinions (i.e. opinions of public officials made in police report)
      3. Absence of public record admissible to prove nonoccurrence.
    8. Records of Prior Felony Conviction: available in any crim and civil case to prove any fact essential to judgment (but in crim case, govt may use evidence for this purpose only against accused; may only be used for impeachment purposes of others).
    9. Ancient Documents: statements in authenticated document 20 years old or more are admissible.
    10. Learned Treatise: admissible as substantive proof if:
      1. relied upon by expert witness; and
      2. Established as reliable authority by testimony of that W, OR other testimony or judicial notice
    11. Family Records: statement of fact found in family Bibles, jewelry engravings, tombstones, etc.
  3. Residual Catch All – Circumstantial guarantees of trustworthiness, necessary and notice to adversary as to nature of statement.
CONFRONTATION CLAUSE – hearsay statement may not be used in a criminal case if (i) out-of-Ct-stmt; (ii) Unavailable DL; (iii) Stmt is Testimonial (Stmt in Ct or to further investigation aimed at prosecution – not during emergency); (iv) no chance to X-examine when stmt was made
BURDENS OF PROOF
1. Burden of Producing Evidence: party w/ burden of pleading has burden of producing or going forward w/ev sufficient to make out a prima facie case. Then, up to incumbent to come forward w/ev to rebut
2. Burden of Persuasion (Proof): after parties have sustained burden of production of evidence, Q is whether party w/ burden of persuasion has satisfied it.
  1. Civil cases:burden of persuasion = preponderance of the evidence (more probably true than not true);
  2. Criminal cases:beyond a reasonable doubt.
DETERMINATION OF ADMISSIBILITY
1. GR: Q’s of law are for trial judge to determine and questions of fact are for the jury.
2. Preliminary facts decided by jury: agency, authenticity of docs, credibility of W, and personal knowledge
3. Preliminary facts decided by judge: facts affecting competency of evidence, requirements for hearsay exceptions, privileges, expert testimony and mental competence.
FEDERAL VS. STATE LAW
1. Diversity Cases
  1. State substantive law; federal procedural laws
  2. 3 instances where state evidence law will apply in fed ct if state substantive law applies:
    1. Burdens of proof and presumptions
    2. Rules re competency of W (i.e. Dead Man statute)
    3. Privileges
2. Federal Question
  1. Privileges (fed common law applies)
    1. Fed common law has not recognized physician/patient privilege.

CALIFORNIA DISTINCTIONS

RELEVANCE
1. FRE & CEC: Relevant = tendency to make a fact of consequence more or less probable
2. CEC: Fact of consequence must be in dispute
3. Exclusion for Policy Reasons:
  1. Subsequent Remedial Measures
    1. CEC: SRM is admissible in strict liability defective design

Settlement Offers
1. FRE & CEC: Stmts during settlement offers are inadmissible fault or liability
2. CEC: Stmts in mediation also inadmissible

Pymt or Offer to Pay Medical Expenses
1. FRE & CEC: Offers to pay medical expenses are inadmissible
2. FRE: Admissions of fact during offer are admissible
3. CEC: Admissions of fact during offer are NOT admissible
Expression of Sympathy
1. CEC: Civil: Sympathy Stmts about V’s suffering or death are NOT admissible; BUT stmts of fault ARE admissible
Pleas later withdrawn, offers to plea & related Stmts
1. FRE & CEC:inadmissible in Civil and Criminal under BOTH CEC and FRE
2. CEC: BUT Prop 8 effect (criminal) unknown

CHARACTER EVIDENCE
1. CIVIL Cases:
  1. General Rule: Both CEC and FRE – Character Evidence is inadmissible to prove conduct (unless character at issue – must be 1 of 5 civil cases)
  2. FRE: Prior Sexual Assault or Child Molestation act Exception in civil case of sexual assault or child molestation
  3. CEC: NO Sexual Assault or Child Molestation Exception in civil case
2. Criminal Cases:
  1. General Rule: is that propensity E is inadmissible BUT D can open either door (D’s door or V’s Door) and P can rebut
  2. When D can open the D’s Door or V’s Door
    1. FRE and Direct: Rep and Opinion OK but NOT Specific Instances
    2. FRE and Cross: Rep, Opinion and Specific Instances are OK
    3. CEC Direct and Cross: Rep, Opinion and Specific Instances are OK subject to balancing (probative v. prejudicial)
  3. Exceptions: where P can 1^st offer E of D’s character to prove conduct:
    1. FRE and CEC: Sexual Assault/Child Molestation Exception P can be first to offer D’s prior sex assault/child molestation acts
    2. FRE: D offered character E of V, P may offer character E that D has same character trait
    3. CEC: In a Domestic Violence/Elder Case P may first offer D’s prior acts of domestic violence/elder abuse
    4. CEC: If D offered character E that V is violent, THEN P can offer character E that D is violent
  4. Exceptions: where P can be the 1^st to open V’s door:
    1. FRE (specific instance exception): in homicide case, after D claims V attacked first/self defense, prosecution can offer evidence of V’s peaceful character
    2. CEC: In any criminal case where V’s character is relevant (i.e. D alleges affirmative defense of self defense  P can offer rep, opinion or SI of V’s peaceful character in P’s CIC)
TESTIMONIAL EVIDENCE
1. Competency
  1. FRE & CEC: (i) PK; (ii) ability to communicate; (iii) recall what was perceived; (iv) take oath
  2. CEC: also requires W understand legal duty to tell truth
  3. CEC and recalling: Civildisqualifies hypnotizing to refresh; Criminal hypnotizing to refresh OK if police and not suggestive procedure
2. Expert Opinion Testimony
  1. FRE & CEC requirements: (i) helpful to jury; (ii) qualified; (iii) reasonable degree of certainty; (iv) factual basis; (v) reliable principles, reliably applied
  2. CEC: Reliability = Generally accepted by experts in the field
  3. CEC: Learned Treatises = needs general notoriety (almost never applicable)
3. Impeachment w/ Inconsistent Stmt
  1. FRE & CEC: NOT HS if offered to impeach
  2. FRE: under oath than can also be offered for truth, otherwise just offered to impeach
  3. CEC: HS Exception = All Inconsistent Stmt of Wregardless of oath or not, are admissible to impeach AND for their truth
4. Impeachment w/ Prior Felony Conviction
  1. FRE: all felonies involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;
  2. FRE: Felonies not involving lying must be balanced (prej. v. prob.)
    1. EE = Admissible to impeach
  3. CEC: all felonies involving “moral turpitude” are admissible subject to balancing
  4. CEC: felonies not involving “moral turpitude = inadmissible
    1. Moral Turpitude = lying, violence, theft, extreme recklessness, and sexual misconduct  NOT mere negligent or unintentional act
    2. EE = Admissible to impeach
    3. No 10 yr limitation
5. Impeachment w/ Prior Misdemeanor Conviction
  1. FRE:all misdemeanors involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;
  2. FRE: All misdemeanors not involving lying = inadmissible
    1. EE = Admissible to impeach
  3. CEC: Misdemeanor Inadmissible in Civil
  4. CEC: Misdemeanor of Moral Turpitude Admissible in Criminal subject to balancing
    1. No 10 yr limitation
    2. EE = Admissible
6. Prior Bad Acts (PBA)(Non-Conviction)
  1. FRE: PBA involving lying = Admissible in Civil AND Criminalsubject to balancing
    1. ONLY on Cross
    2. EE = Inadmissible
  2. CEC: PBA (regardless of moral turpitude) = ALWAYS Inadmissible in Civil
  3. CEC: PBA of Moral Turpitude = Admissible in Criminal subject to balancing
    1. Cross AND EE = Admissible
HEARSAY: CEC: Only has HS Exceptions
1. FRE: Not-HS; CEC: HS Exception
  1. Admissions of a Party Opponent
    1. FRE & CEC: Stmt by opponent (or attributable to opponent) offered by party opponent
    2. FRE: Not-Hearsay; CEC: HS Exception
    3. FRE: Vicarious Admissions – Stmt by EE, concerned matter w/in scope, while employed
    4. CEC: Vicarious Admissions – only under theory of Respondeat Superior
  2. Prior Inconsistent Stmt of a W
    1. FRE & CEC: not HS if offered just to impeach
    2. FRE: if under oath can offer both to impeach and for truth
    3. CEC:All inconsistent stmts can be offered for both impeachment and truth, regardless of whether under oath
  3. Prior Consistent Stmt of W now testifying at trial (to rebut)
    1. FRE & CEC: Admissible if made before bribe or inconsistent Stmt
2. HS and DL Unavailable (FRE & CEC: Unavailable – (i) privilege; (ii) dead or sick; (iii) cannot procure attendance by reasonable means; FRE: DL refuses despite Ct order; DL cannot remember the subject;CEC: (i) total memory loss; (ii) DL refuses to testify b/c of fear
  1. Declaration Against Interest
    1. FRE & CEC: Unavailable; stmt against financial ($ and property) or pecuniary (criminal liability) interest
    2. FRE: Stmt exculpating D must have corroborating E
    3. CEC: also includes stmt against social interest
  2. Former Testimony
    1. FRE & CEC: former testimony and unavailable; party against whom offered was a party in the earlier proceeding and opportunity to cross with similar motive
    2. FRE: in aCivil case party against whom offered was not a party but had privity (predecessor-in-interest) and opportunity to cross with similar motive
    3. CEC: in aCivil case party against whom offered was not a party but original party had opportunity to cross with similar motive
    4. CEC: DL not unavailable and former testimony is offered against original testifying party OR predecessor in interest
  3. Dying Declaration
    1. FRE: Civil or homicide, DL unavailable, believes he is about to die, describes cause/condition, death not req’d just unavailability
    2. CEC:Both Civil and Criminal, DL is dead, believes he is about to die, describes cause/condition
  4. OJ Exception
    1. CEC: DL unavailable,Stmt by DL describing injury or threatat or near the time of injury or threat in writing or recorded to police or medical personnel
3. HS and DL Immaterial
  1. Contemporaneous Statement (Present Sense Impression)
    1. FRE:Stmt about event or conditionwhile perceiving or immediately thereafter
    2. CEC:Stmt about conduct of DLwhile DL was engaging in it
  2. Spontaneous Statement (Excited Utterance)
    1. FRE and CEC: Stmt relating to startling eventat or near the time of the startling event while still under excitement
  3. Present State of Mind
    1. FRE and CEC: Stmt of DL’s then existingstate of mind, emotion, sensation, or physical condition

Usually used to show DL’s intent (declaration of present intent to do something in near future offered to infer future act was done).
Admissible when state of mind is a material issue OR to show subsequent acts of DL.

Declaration of Past Physical Condition (statement to physician)
1. FRE: Stmt made to medical personnel to assist in diagnosing/treating the condition;
  1. Must be pertinent to diagnosis/treatment (even if diagnosis is only for purpose of giving testimony)
2. CEC:Stmt by a minormade to medical personnel to assist in diagnosing/treatingchild abuse;
  1. Must be pertinent to diagnosis/treatment (even if diagnosis is only for purpose of giving testimony)
Past Physical or Medical Condition, including Stmt of Intent
1. CEC: DL unavailable, Stmt of past physical or mental condition or Stmt of intention if condition/intention is at issue
Business Records
1. FRE & CEC: Made in regular course of business and customary to make type of entry involved (i.e. entrant had a duty to make entry); Entry must be germane to the business; DL needs PK OR w/in PK of s/o w/ duty to transmit such matters to entrant
  1. HS NOTE:Stmts of W’s or parties in police report NOT admissible b/c these ppl not under a business duty to convey info to police.
2. Authenticity: custodian may testify that record is a bus record, OR certify in writingthat it is a bus record.
3. Lack of Biz Record may be used to show nonoccurrence of event
4. CEC: restricts opinions/diagnoses to simple opinions/diagnoses
Past Recollection Recorded
1. FRE & CEC: if W’s memory cannot be revived, party may introduce a memorandum made at or near time of event; W had PK, made/adopted by Wwhen fresh in memory.
Public Records/Reports
1. FRE: writing must have been made by and w/in scope of duty of public employee, made at or near time of event.
  1. Not admissible against D in criminal case
  2. Includes opinions (i.e. opinions of public officials made in police report)
  3. Absence of public record admissible to prove nonoccurrence.
2. CEC: Admissible in BOTH Civil and Criminal
Records of Prior Felony Conviction
1. FRE & CEC available in any crim and civil case to prove any fact essential to judgment (but in crim case, govt. may use evidence for this purpose only against accused; may only be used for impeachment purposes of others).
2. CEC Analysis: has HS exception for Civil and Prop 8 makes it admissible in criminal
Ancient Documents
1. FRE: statements in authenticated document 20 years old or more are admissible.
2. CEC: statements in authenticated document 30 years old or more are admissible.

WRITINGS
PRIVELEGES
1. Attorney/Client Privilege
  1. FRE & CEC: the same except . . .
  2. CEC: A/C Privilege Exception – privilege does not apply where lawyer believes disclosure is necessary to preventdeath or substantial bodily harm
2. Patient/Doctor Privilege
  1. FRE: does not exist
  2. CEC: CA has it
    1. Does NOT apply in criminal cases
3. Psychotherapist/Patient Privilege
  1. CEC: Does not apply if: (i) RC to believe danger to himself or others and disclosure is necessary to prevent danger
4. Spousal Privilege
  1. FRE: testimonial privilege applies only in Criminal cases
  2. CEC: testimonial privilege applies in BOTH Criminal and Civil cases
  3. FRE & CEC: confidential spousal applies in BOTH Criminal and Civil
JUDICIAL NOTICE
1. CEC: whether requested or not, must take JN of matters generally requested w/in jxd
2. CEC: must accept JN in BOTH Criminal and Civil

Evidence Outline for the California Bar Exam

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