Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Form? F
Purpose? P
‐ Logical? ‐ Log.
‐ Legal? ‐ Leg.
‐ Character? ‐ Char.
‐ Impeachment ‐ Imp.
Presentation? Pres.
‐ w/Person? ‐ w/person
‐ w/Doc ‐ w/Doc
‐ w/Judicial Notice ‐ w/JN
Hearsay? HS.
Privilege? Prv.
Writing Approach
1. Initial Step EVIDENCE:
a. Identify all evidence (testimony, docs, objects, pictures) that either party wants to
admit.
b. List each piece of evidence as the call and follow “Writing Approach for EVERY CALL”
Writing Approach for EVERY CALL
2. Step 1 FORM:
a. Identify FORM of the Q and A objections. Ask “do I have any form of the Q or form of
the A objections?”
b. Raise them now at same time.
3. Step 2 PURPOSES:
a. Are there any issues with WHY or WHY NOT the evidence is being admitted?
i. Logical
ii. Legal
iii. Character
iv. Impeachment
4. Step 3 PRESENTATION:
a. Are there any PRESENTATION issues?
b. Are there any issues with HOW the evidence is being admitted?
5. Step 4 HEARSAY:
a. Are there any HS issues?
b. Is the HS single, double, or multiple?
c. Any exemptions? – Definition is HS BUT FRE says not HS
d. Any exceptions? – HS but exception
6. Step 5 PRIVILIGES:
a. Are there any PRIVILEGES issues that I need to raise?
Step 1 FORM: this means form of Q or A is inappropriate
1. Leading: a Q that suggests the A.
a. When allowed:
i. On cross OR
ii. On direct IF W is becomes hostile (changes their story) UNLESS
1. W only called on direct b/c they are hostile.
2. Nonresponsive: an answer that does not answer the specific Q OR provides too much
information.
a. Application: If yes/no Q once yes/no A given everything else is nonresponsive.
b. Motion to Strike: counsel should move to strike everything after the specific A.
3. Calls for a Narrative: Q asks for a general narrative (“tell me everything that happened?”)
a. Not permissible: requires rephrasing.
4. Assumption of Facts Not in Evidence: whenever the Q assumes some fact not in evidence
(“when Dan hit you, where were you?” – no evidence Dan hit W)
a. Also w/this usually raise – “Lack of Foundation” below
5. Compound Q: multiple Qs’ and desires only one A.
a. One Q & One A at a time ONLY!!!!
6. Speculation: When W is guessing at the answer and w/out personal knowledge (Q: what was the
weather like outside? A: It must have been raining b/c I saw people with their umbrellas up.)
a. Notice slight change fixes: Q: Did most people with umbrellas have them open and up
outside? A: Yes.
i. Can be used as circumstantial evidence that it was raining – why else would they
have their umbrellas open and up.
7. Misleading: Q is asked that cannot be A’ed w/out making an unintended admission.
8. Lack of Foundation: W has insufficient person knowledge.
Step 2 PURPOSES:
1. Logical Relevance Fed CA: evidence is relevant if it has any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence. CA adds: only relevant if the issue is in dispute.
a. Of Consequence: purpose of the evidence must be to prove/disprove an issue in
question.
b. More or Less Probable: any evidence that would make an issue/element more or less
probable (testimony of W that D had a gun on the day V was shot).
i. Any Tendency: doesn’t take much.
c. Excludable under legal relevance.
d. Types of logical relevance ‐ Evidence of
i. Similar occurrences: evidence not about people and events in issue are
generally inadmissible UNLESS
1. There are certain similarities between those people and events and the
occurrences and people of the case.
2. To Show Causation: If W gets sick at the same restaurant on the same
day AS the P THEN this evidence shows a higher probability that it was
the restaurants food that caused the sickness.
ii. Prior Accident or Claims: are usually irrelevant (proof that P is clumsy and has
fallen down stairs before not allowed) ‐ Exceptions
1. Pattern of Fraudulent Claims – prior suits dismissed b/c accident was
faked.
2. For Preexisting Condition – to show that P already had this type of injury
iii. Previous similar acts to prove intent: if there are many instances of the same act
under the same circumstances then that can be used to prove intent.
iv. Evidence to rebut def of impossibility: if a party claims impossibility of a fact,
occurrence, or issue THEN the opposing party may introduce evidence of the
happening of same fact, occurrence, or issue.
v. Comparable sales: used to establish the FMV based on current market
conditions BUT
1. Must be sold in same area & time.
vi. Habit: is allowed BUT ONLY FOR physical occurrences that happen every time
the requisite conditions are present (must happen frequently). If it sounds more
like character evidence (D always drives safely) then it is not habit.
vii. Routine Business Practice: is relevant to show that conduct of the entity was in
conformity with that practice on the occasion in question.
viii. Industrial custom practice relevant to prove standard of care in negligent case:
is allowed to show that the whole industry does OR does not have a specific
custom or practice.
2. Legal Relevance
a. FRE 403: judge has discretion to exclude logically relevant evidence for unfair prejudice,
confusion, or waste of time.
i. Unf Prej; Common fact pattern: if evidence was admissible for one purpose BUT
REALLY NOT allowed for another.
1. Usually: evidence might show D had propensity to do something BUT it
does so by showing specific instances of past behavior that make D look
like a really bad person.
b. 5 Public Policy Exclusions: if there is a public policy reason why this evidence should not
be allowed (i. – v. below), THEN Writing Approach
1. make sub‐head note (eg, subsequent remedial measures)
2. 1st Sentence: state rule of exception.
3. 2nd Sentence: state the public rationale behind the policy.
4. 3rd Sentence: use facts to determine if exception applies.
5. 4th Sentence: conclusion.
i. Subsequent remedial measures: Evidence of safety measures or repair after
an accident is inadmissible to prove culpable conduct or, in a prod liab action,
defective product design (CA one difference: subsequent design changes in
SPL cases can be used to show design defect).
a. Policy: we want remedial measures taken to make things safer when
notice of the harm is apparent and remedial measures can be taken.
b. Control: remedial actions can be used to show control of the
property/area if that is in question.
c. Rebut: Rebut def of “no reasonable precaution”.
ii. Offers to settle civil: any evidence of settlement (or related statement)(CA:
also any discussions during mediation) are inadmissible to prove liability or
fault. Policy: want people to settle outside of court to lessen the case load on
the courts.
a. Criminal: pleas and offers to plea (and related statements) are
inadmissible to prove guilt. (CEC: is also inadmissible. Prop 8: evidence
is relevant to show D had a guilty mind so would be allowed, but court
can balance)
b. Exception Where no claim has yet been asserted (claim denotes court
– must have sought attorney first) OR prosecutor has not yet
approached D with plea.
c. Exception: Where no dispute has been made to liability (if the party
admits to doing it)
iii. Offers to pay medical expenses: offers to pay medical expenses are
inadmissible when offered to prove liability for the injuries in questions BUT
a. Related statements are still admissible (CA: related statements are
not admissible).
b. Sentence by Sentence: go through the statement sentence by
sentence AND IF admission is in separate sentence from offer to pay
medical expenses THEN admission is admissible. (not the same in
settlements)
iv. CA ONLY Expression of Sympathy: any expression of sympathy is inadmissible,
but if next sentence is admission then that is admissible.
v. Liability insurance: evidence of liability insurance is inadmissible to prove
culpable conduct like negligence or D’s ability to pay judgment BUT can be
used for anything else.
a. Policy: want people to buy insurance.
b. Allowed to prove control OR relationship: If the D paid for certain
insurance it shows they had control of that thing OR to show bias if
W(insurer) testifies for the insured.
vi. Withdrawn guilty pleas: prior plea of guilty is admissible to show guilt.
3. Character Evidence: is only allowed under certain circumstances and its use differs in criminal
and civil courts.
a. Writing Approach
i. Step 1: ID/Head note the issue – Character Issue
ii. Step 2: State rule for character evidence w/o application of the exception.
iii. Step 3: Analyze & determine if it is character evidence by definition.
iv. Step 4: Conclude that it is character evidence & state inadmissible or vice‐versa
v. Step 5: Sub‐headnote and IRAC each applicable exception.
vi. Note: if running out of time combine rule/exception & go to analysis.
b. Four Q approach
i. What is the purpose for which the character evidence is offered? Three
possibilities:
1. Offered to prove character b/c character is an issue in the case.
2. Offered to prove character as circumstantial evidence of a person’s
conduct on the occasion in question.
3. Offered to impeach or support the credibility of a witness.
ii. What method or technique is being used to prove character?
1. Specific acts of conduct.
2. Opinion
3. Reputation
iii. Is it a civil or criminal case?
iv. Does the evidence prove a pertinent character trait?
c. Character evidence – Civil Case: Character evidence is
i. Inadmissible to prove conduct EXCEPT
1. Where civil claim is based on sexual assault or child molestation.
a. THEN D’s prior acts of sexual assault or child molestation are
admissible to prove conduct in the case.
b. (CA: does not have this exception and this would evidence
would not be allowed)
ii. Admissible to prove character WHERE character is in question (eg, suit of
defamation to prove truth of statement, negligent entrustment to show
character of negligence, or child custody cases where character plays a role in
whether parent can obtain custody).
1. Admissible evidence for this purpose is specific conduct, opinion, or
reputation.
d. Character evid – Crim Case:
i. Character evid of D’s character to prove his conduct.
1. Pros cannot be first to offer such evid. Usually, pros may only rebut
after D opens door by offering character evid of himself.
2. EXCEPTIONS where pros may be first to offer evid of D’s charater to
prove D’s conduct
a. Fed & CA: in cases of sexual assault or child molestation, pros
may offer evid that D committed toher acts of sexual assault or
child molestation,
b. Fed only: where court has admitted evid of V’s character
offered by accused, pros may offer evid that accused has same
character trait,
i. CA narrower: where court has admitted evidence of V’s
character for violence offered by D, pros may offer evid
that D has violent character.
c. CA only DomV: in prosecution for domestic violence, pros may
offer evid that D committed other acts of dom violence.
3. Character proven by Opinion, Reputation, and Specific instances
a. Fed Rule
i. Direct – no specific instances
ii. Cross if door open – all three
b. CEC in Direct/Cross – no specific instances
c. Prop 8 in Direct/Cross – allows all 3 BUT subj to 352 balancing
ii. Character evid of V’s character to prove V’s conduct.
1. Fed and CA: Pros cannot be firest to offer character to prove conduct
(door is closed when trial begins).
a. Fed Exception – homicide case: pros can be first to offer
evidence that V had peaceful character if D offers evidence V
attacked first.
b. CA Exception Prop 8 (none under CEC): if evid of V’s character is
relevant IT IS admissible subj to 352 blancing.
2. Character proven by opinion, rep, or spec instances (same as for D’s
character evid).
e. Rape Shield Statutes for Crim and Civ Rape/Sexual Assault Cases: special rule limiting
defense evidence of alleged V’s character when offered to prove consent.
i. Crim Rules: Specific instances of alleged V’s conduct admissible ONLY to prove
1. 3rd party is source of semen or injury OR
2. Prior acts of consensual intercourse between D and alleged V.
3. CA CEC – same rule – inadmissible
4. Prop 8 – makes it admissible b/c it is relevant
ii. Civ Rules: reputation, opinion, or specific instances evidence is admissible IF
1. Probative value SUBSTANTIALLY outweighs unfair prej AND
a. If rep evid: P(V) must have put her reputation in issue.
2. CA CEC – same rule – inadmissible
f. Some Specific Conduct of D allowed: MIMIC (specific instances) may be admitted to
prove anything other than character that is relevant.
i. MIMIC – Motive, Intent, Mistake, Identity (must be some similarity or
uniqueness required to prove identity), Common scheme or plan (the specific
conduct was required to carry out the present crime)
1. Judge has discretion to exclude MIMIC for unfair prejudice.
4. Impeachment (statements to impeach must NOT be HS)
a. Evidence to support credibility of W: inadmissible UNLESS credibility is attacked first.
i. Prior consistent statements: inadmissible UNLESS to show past statement, one
before event giving rise to fabrication, was consistent with the present
statement. THEREFORE, on cross‐examination there must be question giving rise
to recent fabrication.
b. Impeachment.
i. 3 step approach to admissibility
1. Is source of impeachment extrinsic evidence or testimony at this
proceeding of W being impeached?
2. If extrinsic, is it admissible given impeachment technique?
3. Any other foundation requirements?
a. Extrinsic Evidence: any evidence other than testimony given at
this proceeding by the W being impeached (eg, extrinsic
evidence = testimony of other W, writings, prior statements of
the W who is now testifying)
ii. Imp by PIS – FedCal: not HS if offered only to impeach AND
1. CA: for truth
a. Fed:, but only if PIS was given under oath at trial/deposition.
2. Foundational Element: extrinsic evidence admissible only if W given
opportunity to explain or deny.
iii. Imp w/Prior Felony or Misdemeanor Conviction:
1. Fed: all
a. felonies and misdemeanors involving false statement (eg,
perjury, forgery, fraud) are admissible AND no balancing
i. unless conviction 10 years old THEN only if prob val
outweighs prej effect (reverse of usually balancing)
b. felonies without false statement may be admissible BUT court
must balance
i. unless conviction 10 years old THEN only if prob val
must outweigh prej effect
2. CA –CEC: felonies (and under Prop 8 misdemeanors) involving “moral
turpitude” (crimes of lying, violence, theft, extreme recklessness, and
sexual misconduct, but not crimes for merely neg or unintentional acts)
may be admissible (no others are admissible!!!) BUT court must balance
for both felonies and misdemeanors.
iv. Collateral Matters – Impeachment by Contradiction: Extrinsic evidence
inadmissible to impeach on a collateral matter.
1. Collateral Matter = a fact not material to the issues in the case that says
nothing about Ws credibility other than to contradict the W.
v. Impeachment with Evidence of Bias, Interest, Motive – Fed CA: extrinsic
evidence of bias, interest, motive can be used to show recent fabrication.
1. Foundational Element: extrinsic evidence admissible only if W given
opportunity to explain or deny.
vi. Imp w/ Non‐conviction Misconduct Evidence Bearing on Truthfulness:
1. Fed: Acts of misconduct w/no conviction are admissible to impeach in
both civil and criminal cases IF those acts involved lying.
a. Extrinsic Evidence of Act is inadmissible.
b. Must be done on cross
2. CEC: inadmissible
3. Prop 8: admissible if relevant (only relevant if misconduct is act of moral
turpitude).
a. Extrinsic evidence admissible
b. Must be done on cross.
vii. Impeachment w/ Rep and Opinion Regarding Truthfulness Fed CA: extrinsic
evidence of truthfulness is allowed to impeach a W BUT NOT OF any specific
acts.
Step 3 PRESENTATION:
1. w/Person
a. Personal knowledge: they must have personal knowledge of the relevant fact – the fact
perceived must be the fact testified to. This is what is attached when the W would seem
to lack competence b/c of age/infancy, disability, insanity, ect…, but instead of absolute
bar on their testimony the trier of fact is allowed to decide the truth of their statements.
b. Competency – FedCA: to be competent a W must testify based on personal knowledge,
have the ability to communicate knowledge to jury (translator OK), take an oath or
affirmation to tell the truth, claim to recall what they perceive, and (CA adds) W also
must understand legal duty to tell the truth AND all Ws are competent EXCEPT
i. FedCA: the Judge or jurors AND
1. CA also disqualifies: Ws who have been hypnotized to help refresh
recollection EXCEPT
a. In criminal cases WHEN W hypnotized by police using
procedures that protect against suggestion.
c. Expert/Lay opinion: normally inadmissible UNLESS
i. Lay Opinion: Admissible if rationally based (W doesn’t know for sure but can
give an opinion b/c he is in the best position to guess) on the W’s perception
and helpful to the trier of fact (give trier of fact some idea of what was going
on).
ii. Expert Opinion – mIRAC – 5 req’mts for admissibility – Opinion must be
1. Helpful to jury (must req special knowledge to help jury reach
conclusion they could not reach on their own)
2. W must be qualified (must have special knowledge/training regarding
the events and facts in question)
3. W must believe in opinion to reasonable degree of certainty (more than
50% sure)
4. Opinion must be supported by a proper factual basis (including personal
knowledge, admitted evidence, or inadmissible evidence reasonably
relied upon AND
5. Opinion must be based on reliable principles that were reliably applied
(must be the industry standard or something close to that – cannot be
some new and minimally tested principle)
a. If opinion is scientific – step 5: THEN
i. Fed Daubert/Humho Standard: reliability is determined
by four factors; 1) publication/peer review, 2) error
rate, 3) results are tested and there is ability to retest,
and 4) reasonable level of acceptance (does not have to
be generally accepted by experts in the field)
ii. CA Kelley/Frye Generally Accepted Standard: reliability
based on ONE factor – the opinion must be based on
principles generally accepted by experts in the field.
1. Prop 8 inapplicable: b/c this is a test of
relevance (if this test determines it is relevant
THEN prop 8 allows it in criminal cases).
iii. Opinion can never be of a legal conclusion – opinion that D was negligent would
not be allowed b/c it is not opinion of the conduct BUT only of a legal
conclusion.
iv. Learned Treatise: LT, if it is an accepted authority in field, is admissible to prove
anything stated therein OR to impeach EX W.
1. CA Much Narrower (almost never applicable): only admissible to show
matters of general notoriety or interest.
d. Present recollection refreshed: W must have a present recollection of the events BUT
anything may be offered the W to refresh their memory – BUT W must eventually have
present recollection OR testimony is hearsay (it is what the doc says)
i. AND Opponent may inspect and offer into evidence anything used for refreshing
recollection (to show fabrication of testimony)
2. w/Document
a. Authentication: generally some W must authenticate a writing to be used as evidence
UNLESS it is a self‐authenticating writing.
i. Chain of custody: is there a W that can testify that the evidence never left the
chain of custody (ie, party knows this evidence is in fact the original evidence)
1. Similar items: if the evidence is a common item (HP laptop) THEN chain
of custody becomes important (note: it would not be as important if it
was a handmade sweater with D’s name embroidered onto it).
ii. Self Authenticating Writing: these include certified copies of public docs
(deeds), acknowledged docs (ie, docs where the original signature is attested
before a notary to be valid), official publications (govt pamphlets), newspapers,
periodicals, business records (Fed only), and trade inscriptions (labels Fed only).
b. Best evidence rule(fraud prevention): in addition to being authenticated, IF the writing
(writings include photos, x‐rays, ect…) is being submitted to prove the contents of that
writing (the writing has evidence that will prove a fact at issue) THEN the best evidence
rule applies AND the original must be produced w/some exceptions.
i. Exception for Duplicates: a duplicate is a copy of original produced by the same
impression that produced the original (eg, carbon copy) or by a machine (eg,
Xerox Copy, emails, photo, computer printouts) UNLESS
1. Inadmissible: if there is a genuine question as to authenticity of original
(eg, where a party contends that original was tamper with – reasoning:
obviously a copy of tampered doc would be harder to show tampering)
2. CA allows handwritten duplicates.
ii. Exception for Testimony of Destroyed Doc: if the original was destroyed or lost
testimony of that doc is allowed UNLESS there was bad faith of proponent
which caused that lack of evidence (eg, proponent destroyed doc)
3. w/Judicial Notice
a. Judicial notice: JN is a notorious or manifest fact
i. Effect of Criminal v. Civil case
1. Civil – JN is conclusive on jury
2. Criminal – JN is not conclusive on jury
ii. Knowledge OR Experience of Judge: the knowledge or experience of the judge
cannot be used to JN a fact – essentially places judge on the witness stand.
Step 4 HEARSAY – Fed CA: out of court (not in this court) statement offered to prove the
truth of the matter asserted in that statement. (Note: it is hearsay even if the declarant is a W in the
case – W must testify from their own recollection not a statement they previously made) (Prop 8: does
not apply to hearsay so only apply CEC)
1. Not hearsay – not offered for its truth
a. Verbal acts OR legally operative facts (words of contract; defamation)
b. Effect on the hearer OR reader (ex: to prove notice in negligence cases)
c. Circumstantial evidence of declarant’s state of mind (to show insanity OR knowledge of
statement)
d. To show identification (bumper sticker said “My other car is a Ferrari”)
e. To show knowledge of fact or association (declarant must have known X, because he
described his house)
f. Nonhuman declarations (ex: by animal or machine UNLESS the information from the
animal or machine was information input by a human like a computer or parrot)
2. Not Hearsay – Per the FRE exception (note: CA does not have exemptions, but only exceptions)
a. Prior statements by Ws
i. Prior inconsistent statement FedCEC: PIS is NOT hearsay if offered to impeach.
1. Fed: if given under oath the PIS is EXEMPTED and can be used to prove
the facts asserted.
2. CEC: does not have to be under oath and ALL PIS can be used to prove
the facts asserted.
ii. Prior consistent statement FedCEC: must be a claim of recent fabrication AND
the prior consistent statement must have been before the cause of the recent
fabrication.
iii. Prior identification
b. Admissions Fed CA: statement by party, or someone whose statement is attributable to
a party, offered by a party opponent.
i. Admission by party opponents – this is a statement amounting to a prior
acknowledgement of a relevant fact by one of the parties.
ii. Vicarious admissions: by 1 FedCEC) authorized spokesperson OR
1. 2 Fed) EE w/in scope of and during employment
2. 2 CEC) EE only where negligent conduct of the EE is basis for ER’s
liability under respondeat superior (ie, ER is responsible for EE’s words
only if also responsible b/c of that EE’s conduct)
iii. Adoptive admission: non‐party statement and party indicates belief in its truth
iv. Co‐conspirator admission: statement by co‐conspirator made during course
AND in furtherance of conspiracy.
v. Admission by authorized agent: must establish agent.
3. Hearsay BUT Valid Exception
a. Unavailability Exceptions: W unavailable AND IT IS
1. Must be unavailable FedCEC: declarant is unavailable if court exempts
declarant from testifying due to privilege, declarant is dead or sick, or
proponent of statement cannot procure declarant’s attendance by
process or other reasonable means OR
a. Fed – 2 additional: if declarant
i. refuses to testify despite court order OR
ii. declarant’s memory fails on the subject of her
statement
b. CEC: if declarant
i. refuses to testify out of fear OR
ii. suffers total memory loss
i. Former testimony FedCEC: testimony given in earlier proceeding/deposition
by W is admissible IF party against whom testimony is now offered was a
party in the earlier proceeding, had opportunity to examine the W, and its
motive to conduct that exam was similar to motive it has now OR
a. CEC only: the former testimony is offered against the person who
offered it in evidence in her own behalf in the earlier proceeding, or
against a successor in interest of such person OR
b. In a civil case
i. Fed: party against whom testimony is now offered was not a
party in the earlier proceeding but is in Privity‐type
relationship with someone who was a party to that earlier
proceeding (predecessor in interest) and who had an
opportunity and interest to conduct that exam similar to the
interest of the party against whom testimony is now offered.
ii. CEC: party against whom testimony is now offered was not a
party in the earlier proceeding but a party in that earlier
proceeding had an opportunity to examine the W and an
interest to conduct that exam similar to interest of the party
against whom the testimony is now offered.
iii. CEC Unavailability & Depositions: deposition testimony given
by W is admissible IF deponent is unavailable OR lives more
than 150 miles from courthouse.
ii. Dying declaration
a. Fed: declaration by person who believes he is about to die AND
describes cause/circumstances leading to his death
i. is admissible in a civil actions and
ii. in a homicide prosecution if declarant unavailable
b. CEC: applies in all cases (not just criminal homicide) AND declarant
must be dead.
iii. Statement against interest FedCEC: statement admissible IF, at time made, it
was against financial interest of declarant OR would have subjected declarant
to criminal liability
a. Fed: AND in a criminal case, evidence offered to exculpate D (eg,
confession of unavailable declarant) THEN D must offer
“corroborating circumstances” showing that the declarant’s
statement is trustworthy.
b. CEC: OR if the statement is against declarant’s social interest b/c it
risks making declarant an object of “hatred, ridicule, or social disgrace
in the community”.
iv. Statement of personal or family history
v. Statement offered against party procuring declarant’s unavailability
b. Reliability Exceptions: W unnecessary AND IT IS
i. Excited Utterance FedCEC: statements relating to startling event or condition
are admissible when made while declarant was still under stress of excietement
caused by event or condition.
ii. Present sense impression:
1. statement
a. Fed: describing or explaining an event or condition
b. CEC: explaining conduct
2. Made
a. Fed: while declarant was perceiving the event or condition or
immediately thereafter
b. CEC: while the declarant was engaged in that conduct
3. CEC Exception –Only if Declarant Unavailable: for statement describing
infliction or threat of physical abuse made at or near time of injury or
threat , by unavailable declarant, in writing OR recorded OR made to
police (watch out for confrontation clause issues – was this testimony
being give for court action) or medical professional, under trustworthy
conditions.
iii. Present bodily condition FedCEC: A statement of declarant’s then existing
physical or mental condition or state of mind is admissible to show the
condition or state of mind.
1. BUT statement describing a memory or belief is not admissible to prove
the fact remembered or believed.
iv. Past bodily condition (to treat or diagnose)
1. Fed: A statement describing past or present mental or physical
condition of the declarant or of another person is admissible if made for
AND pertinent to medical diagnosis or treatment.
2. CEC – Narrower: a statement of past or present mental or physical
condition is admissible if made for (no pertinent req’mt) medical
diagnosis or treatment, BUT ONLY IF the declarant is a minor describing
an act of child abuse or neglect.
3. CEC – Exception IF In Issue – W/unavil Declarant: a statement of
declarant’s past physical or mental condition, including a statement of
intention, is admissible to prove that condition if it is an issue in the
case (statement of condition before injury in regards to damages).
v. Federal catch‐all
c. Document Exceptions: W unnecessary AND IT IS
i. Business records
1. Fed: record of events, conditions, opinions or diagnoses (CEC – see
below) kept in course of regularly conducted business activity is
admissible if made at or near time of matters described, by person
w/knowledge of the facts, and it was regular practice of business to
make such record BUT court may exclude for untrustworthiness.
a. CEC Narrower for Opinions or Diagnoses: they are only allowed
if they are simple (“P has post dramatic stress syndrome” IS
NOT simple BUT “P has a broken leg” is simple)
ii. Public Records
1. FedCECw/differences: the record of a public office is admissible if it is
within one of the following categories:
a. Civil and Criminal: the record describes the activities of the
office
b. Civil (CEC Criminal also): the record describes matters observed
pursuant to duty imposed by law OR
c. Civil (CEC Criminal also): the record contains factual findings
resulting from an investigation made pursuant to authority
granted by law, UNLESS untrustworthy.
iii. Past recollection recorded
iv. Learned treatise: see expert testimony.
v. Ancient documents: if doc is 20(fed)/30(CEC) years old or more, does not on its
face present irregularities (eg, erasure), and was found in a place of natural
custody (ie, where such doc would be expected), authenticity is established AND
is not hearsay.
vi. Official record
vii. Vital statistics
viii. Family records
ix. Market records
Step 5 PRIVILIGES: Fed: if the suit is based on diversity THEN state privileges apply. CAL: most
privileges law is exempt from prop 8 – so only use Cal.
1. Spousal Immunity FedCal: Spousal testimonial privilege permits W to refuse to testify against
spouse as to anything
a. Fed: applies only in criminal cases.
b. Cal: applies in civil and criminal cases and spouse of party is privileged not even to be
called to witness stand.
2. Confidential marital communication FedCal: spousal confidential communication privilege may
apply in any case and protects confidential spousal communications during marriage.
3. Attorney‐client privilege FedCal: a communication between atty and client or their
representatives intended by client to be confidential and made to facilitate rendition of
professional legal services is privileged unless waived by the client.
a. Corp Privileged Communications
i. EE as W: is not enough for the privilege to apply Fed or Cal.
ii. Fed: privilege applies to communications from EE’s/Agents if they were
authorized by the corp to make the communication to the lawyer on behalf of
the corp.
iii. Cal: privilege applies to
1. communications from EE/Agents if she is the natural person to speak to
the lawyer on behalf of the corp in the matter OR
2. if EE/Agent did something for which the corp may be held liable, AND
corp instructed her to tell its lawyer what happened.
b. Exceptions FedCal: privileges do not apply where
i. Professional services were sought to further crime/fraud, or
ii. Two or more parties consult an attorney on a matter of common interest and
the communication is oofered by one of these parties against another, or
iii. Communication relates to alleged breach of duty between lawyer and client.
iv. Additionally for Cal: privilege does not apply where lawyer REASONABLY
BELIEVES disclosure of communication is necessary to prevent crime that is
likely to result in death or substantial bodily harm.
4. Physician‐patient privilege:
a. Fed: there is a psychotherapist‐patient privilege BUT NO doc‐patient privilege.
b. CA: both exist.
c. Exceptions FedCal:
i. Where patient puts his physical or mental condition in issue, as in a personal
injury suit
ii. Where professional services were sought to aid in crime or fraud OR to escapes
capture after a crime or tort
iii. In case alleging breach of duty between patient and doctor or psychotherapist,
as in a malpractice action.
iv. Cal Only: psychotherapist privilege does not apply if the psychotherapist has
reasonable cause to believe that the patient is a danger to hiself or others, and
that disclosure is necessary to end the danger
1. Doctor patient privilege does not apply in criminal cases or to
information that doctor is required to report to a public office (gun shot
wounds & some communicable diseases)
5. Clergy privilege: like doc‐patient.
6. Accountant privilege
7. Privilege against self incrimination (5th Amend)
8. Govt privileges
9. Cal Privileges
a. Privilege for confidential communications between a counselor and a V of sexual assault
or domestic violence.
b. Privilege for penitential communications between penitent and clergy, and
c. Immunity from contempt of court for new reports that refuse to give up their sources.