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(Discuss Personal Knowledge Requirement, Any Witness Rules, and/or Authentication

problems and Best Evidence Rule).


ESSAY APPROACH
Extrinsic Evidence
 Relevance The next issue is whether there are any policies that bar admission of the evidence. (Discuss any
o Is the evidence logically relevant? extrinsic policies (e.g., public policies) which apply.)
o Is the evidence legally relevant?
 Reliability Thus,
o Is the evidence authenticated or based on personal knowledge?
o Does the Best Evidence Rule apply? Character Evidence
 Extrinsic Policies (Identify any character evidence issues) The next issue is whether the evidence is character
o Is the evidence barred by public policy, undue delay, misleading the jury, evidence. Evidence of a person’s character or disposition is generally inadmissible to prove that
undue prejudice? the defendant acted in conformity therewith. Here, the evidence is character evidence
because_____. Thus, unless an exception applies, the evidence is inadmissible.
 Character
 Impeach
(Identify TYPE of Char. Ev.) There are three types of character evidence: reputation, opinion,
 Privilege and specific instances of conduct. Here, the evidence is _____.
o Is evidence barred by privilege (Then apply exceptions, if any apply: “Here, the evidence is char ev offered by an accused in the
 Hearsay form of opinion evidence. Under the FRE and CA law, a criminal defendant may offer reputation
o Is the evidence barred by the hearsay rule? or opinion evidence, but cannot introduce specific acts that tend to prove innocence.) Thus, ____
testimony regarding her opinion of D’s propensity for violence is inadmissible because it is being
ADMISSIBILITY OF (name item of evidence) offered by prosecution. However, should D introduce evidence as to his good reputation or pinion,
then the prosecutor may then introduce….
The issue is whether ____________ is admissible.
(ALWAYS CONCLUDE) Therefore, the evidence is admissible/inadmissible as char. Evidence.
CA-Prop 8
Under Prop 8, all relevant evidence is admissible in a criminal case, subject to certain Impeachment
exceptions. In cases involving [type of case in facts privilege rules, hearsay, secondary The next issue is whether the evidence is admissible as impeachment evidence (State the ground
evidence rule, rape-shield statutes, character], ordinary rules of evidence apply rather which applies) (APPLY THE RULE)
than Prop 8.
Here, evidence as to W’s alcoholism may be offered to prove that W is incompetent witnessa dn
Logical Relevance has difficulty with memory, perception, and capacity to perceive. If it were demonstrated that W
(Always discuss) The first issue is whether ___ is relevant. In order to be relevant, the evidence were drinking on the evening he witnessed the accident, this evidence could be offeredto impeach
must have a tendency to make a fact of consequence more or less probable than it would be W’s ability to recall events accurately.
without the evidence. CA- disputed fact
Here, evidence is relevant because ___________. Thus, the evidence is relevant/irrelevant. (CONCLUDE) Therefore,

Legal Relevance Privileges


(Discuss legal relevance if issue presented) The next issue is whether the court should exercise The next issue is whether any privileges apply.
its discretion and exclude the evidence. (State Rule and APPLY IT)

Legal relevance means that the probabtive value of the evidence may not be substantially Therefore, the privilege does/does not apply.
outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue
delay, waste of time, or needless presentation of cumulative evidence.
[analysis: it is legally relevant because not excluded on PP grounds and its probative value is not Testimonial objections
sub. outweighed by its prejudicial impact.] Whether the question and answer were in proper form.
Leading Question
The court will balance the probative value of the evidence against its prejudicial effect. A question is leading, and therefore objectionable on direct examination, when it
(Application: “Here, the evidence is more/less probative than prejudicial because….”)
suggests the answer. A leading question may be allowed on direct when the witness
Thus, the evidence should be admitted/excluded. needs assistance, when the witness is a hostile witness or an adverse party, or used as an
introductory matter.
Reliability
The next issue is whether the evidence is sufficiently reliable. Nonresponsive
A witness’s response may be stricken, by the examining party, if the answer goes The lawyer interrogating the witness on direct must ask specific questions and lead the witness
beyond the scope of the specific question asked. Under the CEC, a motion to stricke a through her testimony. If question is too open-ended, may allow W to ramble that may lead to
nonresponsive answer may be made by counsel for any party. inadmissible evidence.

Speculation Hearsay
An examining attorney may not ask a witness to speculate or hypothesize as to the I: Whether the statement(s) are barred by the hearsay rule.
existence or meaning of a fact. Testimony must be based on the witness’s personal Hearsay is an out-of-court statement offered for the truth of the matter asserted. It is
knowledge. inadmissible unless it falls within an exception. Hearsay is excluded from Prop 8, and so
oridinary rules of evidence apply to hearsay in criminal cases.
Lay Opinion Hearsay
An opinion by a lay witness is generally inadmissible, except when it is (1) rationally The issue is whether hearsay applies. Hearsay is defined as…..Here, the (evidence) is hearsay/not
based on the perception of the witness, and (2) helpful to a clear understanding of his hearsay because_______. Therefore, (the evidence is hearsay/nonhearsay).
testimony or to the determination of material fact.
(Hearsay Exception)
Assumes Facts Not in Evidence The next issue is whether an exception to hearsay rule applies.
(State Rule and APPLY IT)
A lawyer may not use questions on direct examination to argue the issue or facts of a case. The Here, the dying declaration exception applies. Under this exception…..
lawyer must ask questions and allow the witness to testify. Here, the question makes an
assumption which has not been established on the record. Witness has not yet testified as to Therefore…….
_____. Thus, the question is improper because it assumes facts not in evidence.

Objection should be overruled/sustained. Hearsay

Lack of Personal Knowledge/Foundation Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A statement
can be words or conduct. If statement does not fall under a hearsay exception, it must be excluded.
A witness may only testify based upon his personal knowledge. A lawyer must present the basis
for the witness’s knowledge (i.e., lay the foundation) before a witness may testify as to the facts in Atty will argue that the statement is being offered for the non-hearsay purpose of showing its
the case. effect on the listener, and would not be hearsay. But will fail if effect on witness is not relevant in
this case.
Here, all that is known is the name of the witness. The lawyer has not established who he was,
whether he observed the accident. Dying declaration
A declaration made under the belief of impending death is an exception to hearsay if the
An objection should be overruled/sustained. declarant actually died and the statement is regarding whatever killed him.
Argumentative
Statement against Interest
A lawyer may not use her questions on direct to argue the facts or issues of the case. An A statement of a now-unavailable person may be admissible if it was made against that
argumentative question is one that does not elicit a response but rather asserts something. The person’s pecuniary, penal, social, interest. If offered to exculpate the accused, it must be
question here asserts that”_______” as opposed to _____. corroborated by evidence to be admitted.
Thus, an objection should be overruled/sustained.
Present Sense Impression / Contemporaneous Statement
Motion to Strike- Calls for Speculation The CEC recognizes an exception for contemporaneous statements that are made at the
time of an occurrence; however, the exception only applies to statements that are made
A motion to strike must be made immediately after a witness’s response, and can only be made to explain/regarding the declarant’s own conduct while engaging in that conduct.
when the original question did not obviously contemplate an objectionable response. If granted,
the jury will be instructed not to consider that portion of the witness’s answer. A witness must Present State of Mind
base his testimony on personal knowledge and cannot speculate as to the conditions surrounding A statement of the declarant’s then-existing state of mind, including a statement of intent
his answer. Court will strike the parts based solely on speculation. Failure to object in the first or plan, can be admitted to prove that intent or plan.
place is excusable.

Motion to strike (im)proper. Should be overruled/sustained. Present Sense Impression


Calls for a Narrative
A statement describing or explaining an event or condition made contemporaneously with the Form: Testimony is proper if W has personal knowledge about subject matter to which he is
event or immediately thereafter is admissible because there is not much time for contemplation to testifying. Letter- satisfied if response to something W had written.
lie.
Presentation:
Excited Utterance
Foundation: foundation must be laid
A statement related to a startling event made while under the stress of excitement of some event.
Authentication: documents must be authenticated before admitted into evidence. Can be
Lay Opinion authenticated by testimony.

Lay witnesses may not testify as to their opinions unless they have personal knowledge, the Best Evidence Rule
information in the opinion cannot be derived from a better source and will be helpful to the trier of
fact, and is not scientific or technical in nature. When the contents of a writing are at issue, the original or reliable duplicate must be produced,
unless the original’s unavailability can be satisfactorily explained.
Excited Utterance
Judicial Notice
An out-of-court statement made relating to a startling event or condition made while under stress
or the excitement of the event is admissible as exception to hearsay. Walker will argue that the A court may take judicial notice of a fact, meaning it may recognize a fact as true without formal
accident was sufficiently startling and if it were an accident serious enough to cause injury, the presentation of evidence, on its own or by request of a party. A judge may take judicial notice of a
fact that is (1) capable of being verified by a source with unquestionable accuracy or (2) based on
declarant may be under stress. Given that the truck just ran the light, the statement implies that the
common knowledge in the community. In a civil case, once a fact is deemed to be judicially
declarant recently observed the incident and was still under the stress. The circumstances one
noticed, the judge instructs the jury that it must accept the fact as conclusive.
would not have the opportunity to fabricate
Judge cannot use his own personal experience to judicially notice a material fact.
Admission of a Party Opponent
Relevance: Only relevant evidence is admissible. Evidence is relevant if it has a tendency make a
fact of consequence more or less probable than it would be without the evidence.
Adoptive Admission

Silence may be treated as an admission if a party heard and understood the statement, 2) had the Exceptions to Relevance: Judicial Discretion
opportunity and ability to respond, and a reasonable person under the circumstances would have
A court may exclude otherwise relevant evidence if its probative value is substantially outweighed
responded.
by the danger of unfair prejudice.
Marital Communications Privilege
Public Policy Exception- Offers of Settlement
Communication made between spouses while they were married are privileged if the
Offers to settle claims will be excluded due to the public policy of encouraging settlements. The
communication was made in reliance on the sanctity of marriage.
rule only applies if there is an actual claim where there is a dispute as to (1) liability or (2) amount.
Character Evidence
Remedial Actions
Evidence of a person’s character (or character trait) is generally inadmissible to prove that the
Evidence of remedial measures taken after an incident are not admissible for public policy reasons
person acted in conformity with the character trait on a particular occasion.
of encouraging remedial actions. However, evidence of remedial measures may be admissible to
[Crim Trial] prove ownership and control, or to rebut proof that greater care could not have been taken.
Prosecution may not introduce affirmative evidence of specific acts until the D has opened the
door to such evidence, by either supporting his own character, or attacking the victim’s  Could be offered to rebut purpose accompanied with limiting instruction in
character. purpose.
Impeachment
Expert Witness
A person’s character for truthfulness or untruthfulness is always relevant. May only be proved by
Expert’s opinion must be helpful to the trier of fact and be based on scientific, technical or
opinion or reputation evidence. Extrinsic evidence (including another witness’s testimony) of
specialized knowledge. The expert must be qualified. Expert testimony must be based on facts to a
specific instances of conduct are inadmissible to prove a witness’s character for untruthfulness.
reasonable certainty- not speculation
However, may be cross-examined about SIC, but no extrinsic evidence is permissible.
Prior Bad Act
Could object on relevance. CA will admit statements made to a doctor for purposes of receiving treatment. However, in CA
this exception only applies to minors who make the statements in connection to a claim of child
Analysis could not legally relevant, should be excluded since probative value sub outweighed by abuse or neglect.
prejudicial effect- could mislead jury that act is sufficient proof of D’s guilt.
Statement of a then-existing physical or mental condition
Public Record A statement made regarding a then-existing physical condition is an exception to the hearsay rule.
Excited Utterance
Police report is admissible as an official record, because the statements are written by individuals A statement by declarant relating to a startling event or condition, made while still under the stress
with a duty to accurately convey the information in them. However, the statements in the records or excitement. [Remote or near in time?]
are hearsay. They do not fit withint eh official record or business record exception if the declarant
is not under a duty to convey the information. Present Sense Impression
Statement made describing an event or condition made contemporaneously with the event or
EVIDENCE [CA SPECIFIC] immediately thereafter. CA, only recognizes this to the extent that it applies to the declarant’s
conduct, not what declarant sees as to anyone else.
Preliminary Matters
Police Report- Hearsay
Proposition 8 is an amendment to the California Constitution that states, in part, that all relevant Two levels of hearsay in the police report. Both levels of hearsay must fall within a hearsay
evidence is admissible in a criminal trial. If the case is civil, this will not apply. exception in order to be admissible in court.
Standard of Relevance Public Records
In CA, evidence is relevant if it has any tendency to make a disputed fact of consequence more In CA, public records exception to hearsay requires that the record be made by a public employee
or less probable. in accordance with his duties, that the matters were recorded at or near the scene of the accident,
that the official had personal knowledge of the matters contained in the record, and that the record
Discretion to Exclude CEC 352 was made under circumstances indicating trustworthiness.
Under CEC 352, a judge has discretion to exclude evidence where its probative value is
substantially outweighed by risk of unfair prejudice, confusion of the issues, or undue delay. Expert Witness Opinion
Expert opinion is admissible if the testimony is 1) from a witness qualified as an expert, 2) based
Statement about Insurance on scientific, technical knowledge that is helpful to the trier of fact, 3) the expert is reasonably
Relevance- might tend to show that the driver was driving negligently because he knew he was certain of his conclusion, 4) supported by proper factual basis and 5) based on reliable principles
covered by insurance. May also indicate an admission of fault because D’s insurance company that are reliably applied to the facts.
would only pay for another’s injuries if D was at fault.
Legal Relevance Lay Opinion
An opinion by a person that is rationally related to that person’s perception
Public Policy Exclusion Unavailable declarant- always poses some prejudice, since other party does not have opportunity
According to CEC, proof of liability insurance is inadmissible in a civil trial to prove that D was at to cross-examine.
fault or that D has the ability to pay because public policy concerns dictate that having insurance
should be encouraged.

Offer to pay medical expenses


In CA, offers to pay medical costs are inadmissible to show defendant’s culpability, or ability to
pay. Statements made in connection with the offer to pay are also excluded.

Statements of Sympathy
Inadmissible to prove D’s fault.

Hearsay

Admission by a Party Opponent


In CA, admission by party opponent is an exception the hearsay rule. An admission is any
statement made by an opposing party that is a prior acknowledgement of any fact in the case.

Foundation- W’s personal knowledge

Statements of a Past Physical Condition