EVIDENCE SHORT OUTLINE/CHECKLIST

CHECKLIST

I. Form

II. Purpose
a. LOGICAL RELEVANCE
b. LEGAL RELEVANCE
c. POLICY EXCLUSIONS
d. CHARACTER

III. Presentation
a. WITNESS
i. Competency
ii. Use of Documents
iii. Opinion
iv. Impeachment
b. DOCUMENTARY
i. Authentication
ii. Best Evidence Rule
iii. Judicial Notice

IV. Hearsay
a. DEFINITION
b. NOT HEARSAY (5)
c. EXEMPTIONS (NONHEARSAY) (2)
d. EXCEPTIONS
i. UNAVAILABILITY (3)
ii. UNAVAILABILITY IMMATERIAL (4)
iii. DOCUMENTARY (3)
iv. CATCH-ALL
e. CONFRONTATION CLAUSE

V. Privileges
a. RELATIONSHIP
b. REQUIREMENTS
c. EXCEPTIONS
d. HOLDER/WAIVER

VI. Proposition 8 (California)

a. PURPOSE
b. EXCEPTIONS
c. APPROACH

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I. Form
A. Leading Question
i. Leading questions are okay on cross
ii. Leading questions are OK on direct if adverse witness, hostile witness, or witness needing help
iii. Leading questions are OK to elicit preliminary or introductory matters
B. Non-Responsive
i. Doesn’t respond directly to the question or goes beyond scope of specific question asked
C. Calls for Narrative
i. Open ended questions - “tell us everything that happened” or “tell us the story”
D. Assumes Facts Not in Evidence
i. Asking question related to evidence that has not been offered into evidence
E. Argumentative
i. Challenging witness testimony
F. Compound
i. Asking more than one question at the same time
G. Calls for Speculation
i. Witness has to guess – not within personal knowledge

II. Purpose
A. LOGICAL RELEVANCE
i. 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 Distinction: the fact of consequence must also be in dispute.

ii. Special Relevance Issues – Similar Occurrences: Evidence is usually irrelevant if about
people/events not in issue, except can be relevant when there are certain similarities…
1. Similar Occurrences to Prove Causation
2. Prior Accidents or Claims of Π are Usually Irrelevant to show validity of present claim
a. EXCEPTIONS (relevant if shows)
i. Pattern of fraudulent claims - shows claim is likely to be false
ii. Preexisting Condition - shows Π's condition is from prior injury
3. Similar Accidents Caused by Same Event – admissible to show (1) existence of a
dangerous condition, (2) Δ’s knowledge of the condition, and (3) causation
4. Similar Acts to Prove Intent
5. Evidence Relevant to Rebut a Defense of Impossibility
6. Comparable Sales relevant to Establish Value - property in the same area, same time to
evidence sales comparable sales price
7. Habit Evidence – the habit of a person to act in a certain way is relevant and admissible
to show the person acted in accordance with the habit on the occasion in question.
a. Must be frequently repeated conduct
b. (don't confuse w/ character evidence, habit is specific & lacks any moral jgmt)
8. Routine Business Practice Evidence – Routine business practice is relevant to show that
a particular event occurred
9. Industrial Custom Evidence Relevant to Prove Standard of Care in Negligence Case –
Industry custom may be offered to show adherence to or deviance from industry-wide
standard of care

B. LEGAL RELEVANCE
i. Even if evidence is relevant, the court has the discretion to exclude it if probative value is
substantially outweighed by unfair prejudice, confusion or waste of time.

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1. Look for:
a. Emotionally disturbing evidence
b. Evidence admissible for one purpose but inadmissible for another

C. POLICY EXCLUSIONS (exclude despite relevance)

i. Liability Insurance
1. Evidence of liability insurance is not admissible to show negligence or ability to pay a
substantial judgment.
2. Policy behind this rule is that society wants people to carry liability insurance
a. Exceptions:
i. It may be admissible for any other purpose, common examples are (1)
to prove ownership/control, (2) to impeach, & (3) as part of an
admission.
ii. Subsequent Remedial Measures
1. Evidence of safety measures or repairs after an accident is not admissible to prove
culpable conduct or, in a products liability action, to prove defective product design or
failure to warn. CA Distinction: doesn’t have part about product design.
2. Policy behind this rule is to promote safety precautions
a. Exceptions:
i. It may be admissible for any other purpose, common examples are (1)
to prove ownership/control, (2) to rebut a claim that the precaution
was not feasible, and (3) to prove an opposing party has destroyed
evidence.
iii. Settlement Offers
1. Evidence of settlements, offers to settle and related statements are not admissible to
prove liability or invalidity of a claim that is disputed as to validity or amount. CA
Distinction: also extends to discussions during mediation proceedings.
2. Policy behind this rule is desire to encourage parties to settle dispute
a. Exceptions:
i. Does not apply if no claim has been filed and no claim is threatened.
ii. Can offer to show bias
iv. Guilty Pleas
1. Withdrawn pleas, offers to plea and related statements not admissible to prove guilt.
CA Distinction: Prop. 8 might apply to make evidence admissible – subject to balancing.
2. Policy behind this rule is to promote people to plea.
v. Payment/Offers to Pay Medical Expenses
1. Evidence of payments or offers to pay medical expenses is not admissible when offered
to prove liability for the injuries in question but related statements are admissible.
a. CA Distinction - related statements are not admissible
2. Policy behind this rule is to promote people to pay for medical expenses
vi. Expressions of Sympathy (CA ONLY): Expressions of sympathy relating to suffering or death or
accident victim in a civil action is NOT admissible. BUT, statements of fault made in connection
with such expressions are admissible. NO comparable federal rule.

D. CHARACTER
i. Civil Case
1. In civil cases, character evidence is generally not admissible to prove conduct (even by Δ)
a. Exceptions (Not in CA)
i. if claim is based on sexual assault/child molestation. Where civil claim
is based on sexual assault or child molestation, Δ's prior acts of sexual
assault or child molestation are admissible to prove conduct in this case.
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ii. where character is in issue (IE: defamation, child custody disputes, loss
of consortium, or negligent entrustment).
2. If admissible, all methods are available – specific instances, opinion, and reputation.
3. Rape Shield Statute:
a. Reputation, opinion and specific instances evidence is admissible if probative
value substantially outweighs unfair prejudice and, in the case of reputation
evidence, plaintiff put her reputation at issue.

ii. Criminal Case

1. Generally, the prosecution cannot offer evidence of the defendant’s character to show
that defendant had a propensity to commit the crime. The defendant however can
open the door and introduce evidence of her own good character to show her
innocence of the alleged crime.
a. Exceptions (where prosecution can offer evidence before Δ opens the door):
i. Sexual Assault/Child Molestation Cases – prosecution can offer
evidence of Δ's prior sexual assault/child molestation.
ii. Domestic Violence/Elder Abuse (CA ONLY): In prosecution for domestic
violence/elder abuse – prosecution can offer evidence of other acts of
domestic violence/elder abuse.
2. Defendant’s Character:
a. Direct Examination by Δ: Δ may offer evidence of his relevant good character
ONLY by opinion and reputation testimony, NOT specific instances.
i. This opens the door to the prosecution asking about Δ's character
1. Pros can ask a witness if he's aware of Δ's specific instances of
bad conduct, but may NOT impeach the witness with the
witness's own arrests
b. Direct Exam by prosecution: Prosecution can offer specific instance evidence
under MIMIC on direct (see below)
c. Cross-Examination: – any method may be used on cross-examination:
reputation, opinion, and specific instances (SI on cross only, no extrinsic evid)
3. Victim’s Character:
a. The defendant may offer evidence (reputation or opinion ONLY) of a victim’s
character trait if it is relevant to show the Δ's innocence. The prosecution can
then rebut with reputation or opinion evidence of (1) the victim’s good
character, or (2) the Δ's character for the same trait.
i. CA only allows for evidence of Δ's character for violence (not any trait)
ii. CA only - can use all forms (rep, opinion, and specific instances) on both
direct and cross when proving Vx's character
b. Exceptions:
i. Victim’s Sexual Behavior/Rape Shield Statute:
1. Reputation and opinion evidence not admissible
2. Defendant cannot offer evidence of specific instances of victim’s
past sexual behavior in a rape case unless (1) it is to prove that
someone other than the Δ is the source of the semen, injury, or
other physical evidence, or (2) specific instances of sexual
behavior btwn the Δ and victim to show consent.
c. HOMICIDE CASES:
i. In a homicide case, if a defendant offers evidence that victim attacked
first, prosecution may offer evidence of victim’s character for
peacefulness. (No similar exception in CA)

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iii. Specific Acts of Misconduct (MIMIC)
1. Evidence of a person’s other crimes or misconduct is inadmissible if offered SOLELY to
show that Δ had a propensity to commit the crime. HOWEVER, in both civil and criminal
cases, it is admissible if offered for a noncharacter/propensity purpose (MIMIC):
a. MOTIVE
b. INTENT
c. MISTAKE – absence of mistake
d. IDENTITY – need similarity and uniqueness
e. COMMON PLAN/SCHEME
2. If using MIMIC, will always have a dual purpose issue with character evidence
3. Using MIMIC lets in evidence as substantive evidence against the Δ

III. Presentation of Evidence

A. WITNESS TESTIMONY
i. COMPETENCY – four requirements:
1. (1) Personal Knowledge – must testify re facts perceived with own senses.
2. (2) Present Recollection – recollection from memory, not from record now forgotten
3. (3) Communication – must be able to relate perception directly or through interpreter
a. Interpreter must qualify as an expert and take oath to make a true translation
4. (4) Sincerity – must take oath/affirmation to tell the truth (CA requires to ability to
understand legal duty to tell the truth).
a. Dead Man Statute: in a civil suit against an estate, an interested party is NOT
competent to testify about a transaction or conversation with the dead man
when such testimony is offered against the representative of the deceased

ii. FORM OF EXAMINATION – see form objections above

iii. USE OF DOCUMENTS TO ASSIST WITNESS TESTIMONY

1. Refreshing Recollection
a. A witness may use anything to refresh her memory, but cannot read from a
writing while testifying.
2. Past Recollection Recorded
a. If a witness looked at a document to refresh her memory but still cannot
remember enough to testify fully and accurately, the writing can be read into
evidence as long as the following foundational elements are met:
i. (1) witness had personal knowledge of the facts at the time of writing;
ii. (2) writing was made by wx or under her direction or adopted by wx;
iii. (3) writing was timely made when the matter was fresh in the witness’s
mind;
iv. (4) writing was accurate when made; and
v. (5) witness has insufficient recollection to fully and accurately testify.

iv. OPINION TESTIMONY

1. Lay Witness Testimony
a. Generally, lay witness opinions are not admissible, unless:
i. (1) it is rationally based on the witness’s perception
ii. (2) it is helpful to a clear understanding of his testimony or helpful to
determination of fact in issue, and
iii. (3) not based on specialized knowledge (Not in CA)
1. Most common examples: appearance of person, state of
emotion of person, sense recognition, handwriting/voice ID,
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speed of moving object, value of his own services, rational or
irrational nature of other’s conduct, intoxication of another.
2. Expert Opinion Testimony
a. Expert testimony is admissible if:
i. (1) specialized knowledge helpful to the jury,
ii. (2) witness is qualified as expert (education, knowledge, experience)
iii. (3) witness believes in his opinion to a reasonable degree of certainty
iv. (4) opinion supported by proper factual basis – based on:
1. (i) personal knowledge,
2. (ii) facts made known to expert at trial (based on evidence)
3. (iii) facts not known personally but supplied outside of court
and of a type reasonably relied on by experts
v. (5) opinion must be based on reliable principles reliably applied
(Daubert/Kumho), factors include:
1. (i) peer reviewed
2. (ii) tested and subject to retesting
3. (iii) low error rate
4. (iv) reasonable level of acceptance
a. (Kelly/Frye) CA doesn’t follow these factors – it has its
own test: the opinion must be based on principles
generally accepted by experts in the field.
vi. **Experts can render opinion as to ultimate issue in the case, unless in a
criminal case the issue is the Δ's mental state
b. Learned Treatise– learned treatise is admissible to prove anything stated
therein if it is an accepted authority in the field – expert can actually READ from
the treatise. CA Distinction: only admissible to show matters of general
notoriety or interest.

v. IMPEACHMENT
Impeachment is evidence that tends to discredit the credibility of a prior witness. A party may
be impeached by any party, even the party calling him, in the following ways:
1. Bolstering Credibility
a. Cannot bolster a witness's credibility until it has been attacked (wx impeached)
b. Bribes - Prior consistent stmts are not hearsay and are admissible for all
purposes if it occurred prior to the bribe
2. by Contradiction
a. Can use extrinsic evidence to impeach on non-collateral matters
i. Collateral matter = a fact not material to the issues in the case that says
nothing about the wxs' credibility other than to contradict the witness
1. (extrinsic evidence on minor non-impt points will be excluded)
ii. Extrinsic evidence = testimony of other wxs, writings, prior stmts of wx
who is now testifying
3. Prior Inconsistent Statement
a. A party may show, by cross or extrinsic evidence, that a witness has made a
prior inconsistent statement with his present testimony.
i. Extrinsic evidence is only allowed if the wx is given the opportunity to
explain or deny the prior statement (before or after; n/a to hearsay declarants)
ii. Generally, these statements would be hearsay if offered to prove truth.
However, if given under oath in a prior proceeding, it is admissible
NON-hearsay. (CA Distinction: exception to hearsay even if it was not
given under oath at trial or deposition – so it covers all statements)
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iii. Not hearsay if only offered to impeach, not to prove truth
1. NOTE - "I don't remember" does not open up impeachment w/
a prior inconsistent statement

4. Bias, Motive, or Prejudice

a. A party may show, by cross or extrinsic evidence, that a witness is biased or has
an interest in the outcome that show’s motive to lie.
i. Proper Foundation: Extrinsic evidence is only allowed if the witness is
first asked about the facts that show bias or motive.

5. Prior Convictions
a. Any Crime Involving Dishonesty
i. ALL convictions (felonies and misdemeanors) for crimes of false
statement or dishonesty (IE: perjury, forgery, fraud) are admissible.
1. No balancing for unfair prejudice against probative value. (CA
has balancing test still) Extrinsic evidence may be used.
2. If more than 10 years since conviction or release, not admissible
unless probative value outweighs prejudice (BoP on offering
party)
a. (no 10 year rule in CA – but is balancing factor)
3. CA Distinction – must be a felony, and a crime of “moral
turpitude.”
a. Moral Turpitude = crimes of lying, violence, theft,
extreme recklessness, and sexual misconduct. NOT
crimes for merely negligence or unintentional acts.
4. Prop 8 allows misdemeanors of moral turpitude in criminal
cases subject to balancing.
b. Felony Not Involving Dishonesty
i. Felonies that do not involve false statement (murder, robbery, rape)
may be admissible to impeach but court may exclude for unfair
prejudice. NO MISDEMEANORS. Extrinsic evidence may be used.
(still considered an attack on wx's overall character for truth/veracity)

6. Prior Bad Acts (Non-Conviction Misconduct)

a. Acts of conduct that did not result in a conviction are admissible to impeach if
the act is probative of truthfulness (lying).
i. CA - Inadmissible, but Prop 8 may allow if relevant in criminal case
1. Relevant if misconduct was act of moral turpitude
2. Extrinsic evidence okay under Prop 8
b. NO extrinsic evidence. May only cross-examine witness about her conduct.
i. If prior bad act offered to show bias, then extrinsic evidence is okay
c. (Prior bad acts usable only to impeach, not to prove propensity)

7. Opinion and Reputation for Truthfulness

a. A witness may be impeached by showing that he has a poor reputation for
truthfulness – including reputation in business circles and the community.
b. Extrinsic evidence allowed
8. Sensory Defects
a. A witness may be impeached by showing either on cross or by extrinsic evidence
that his faculties or perception and recollection were so impaired to make it
doubtful that he could have perceived those facts.
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B. DOCUMENTARY EVIDENCE
i. Authentication
1. All documentary evidence must be authenticated – meaning it must be shown that it is
what the proponent claims it to be. All that is required is proof sufficient to support a
finding of genuineness.
2. Authentication of Documents:
a. Admission by Stipulation/Pleadings
b. Eyewitness testimony – witness says saw Δ signed letter
c. Handwriting Verifications – a handwriting expert compares disputed signature
with a genuine example, or non-expert with personal knowledge of writer’s
handwriting says the disputed signature is Δ's
d. Circumstantial evidence
e. Ancient documents rule – authenticity is established if
i. (i) document is 20 years old or more CA 30 yrs
ii. (ii) does not on its face present any irregularities (IE: erasures),
iii. (iii) was found in a place of natural custody (IE: where you would
expect such documents to be found – lock box)
f. A genuine exemplar – any other document that bears a genuine copy of
defendant’s signature (that Δ has already admitted is his signature).
g. Photos – by photographer or a witness with personal knowledge
h. X-Rays – only by showing that process used was accurate, machine was in
working order, and operator was qualified to work machine. CANNOT use
witness testimony.
3. Authentication of ORAL STATEMENTS:
a. Voice Identification – by anyone that has heard the voice at any time.
b. Telephone Conversations – by testimony that one party recognizes the other’s
voice, only knows certain facts, called a particular number and person on other
side confirmed.
4. SELF-AUTHENTICATING Writings:
a. These include certified public documents (deeds, certified convictions, etc),
acknowledged documents (notary signed), official publications, newspapers,
periodicals, business records (not business record in CA) and trade inscriptions
(not trade inscriptions in CA).
5. NON-UNIQUE EVIDENCE:
a. To authenticate – proponent must lay chain of custody demonstrating that this
is the specific item proponent claims it to be.

ii. Best Evidence Rule

1. To prove the terms of a writing, the original must be produced if the terms are material.
Writings include not only documents but also photocopies of originals, videos, photos,
x-rays, audio recordings, computer disks, or any tangible collection of data (includes
tangible evidence that has writing on it such as engraved lighter/knife/ring/etc)
a. If BER applies, can use originals or duplicates to prove contents of the writing
2. Terms are material if:
a. (1) the writing is a legally operative or dispositive instrument
b. (2) knowledge of the witness results from reading the document
3. Not Applicable In the Following Situations:
a. (1) where fact to be proved exists independently of the writing
b. (2) voluminous documents – can be summarized if originals avail for inspection
c. (3) doesn’t apply to collateral matters
d. (4) doesn’t apply to certified copies of public documents
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4. Secondary Evidence (handwritten copies, notes, oral testimony) admissible if original
a. (1) is unavailable because it has been destroyed,
b. (2) is in possession of a third party and is unobtainable, or
c. (3) the writing is in possession of an adversary who fails to produce the original.
5. CA “Secondary Evidence Rule”:
a. Secondary evidence is as admissible as the original writing unless
i. (1) a genuine dispute exists concerning material terms of the writing
and justice requires the exclusion; or
ii. (2) admission of the secondary evidence would be unfair.
b. Preference for hard copy secondary evidence over oral testimony. Oral
testimony only admissible if proponent does not have possession of a copy of
the writing and the original has been lost or destroyed in good faith.

iii. Judicial Notice

1. Facts Appropriate for Judicial Notice:
a. Courts may take judicial notice of indisputable facts which are either (1) matters
of common knowledge in the community, or (2) capable of verification by
resort to easily accessible sources of unquestionable accuracy.
b. Judicial notice may be taken at any time, whether requested or not.
c. Only applies to “adjudicative facts”–not “legislative facts”-rationale behind laws.
i. Adjudicative facts are those that relate to the particular case
2. Procedural Aspects
a. Party must request judicial notice to compel it and, if not requested, ct has
discretion to take judicial notice. May be taken for first time on appeal
b. Facts are conclusive in a civil case, but NOT in a criminal case – the judge in a
criminal case is instructed that it MAY take judicial notice of the fact.
c. CA - Jury must accept judicially noticed facts in both civil and criminal cases

IV. Hearsay
A. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Statement is
defined as an oral or written assertion by a person, or nonverbal conduct intended as an assertion.

B. NON HEARSAY PURPOSES/CATEGORIES (5) -

i. (1) Stmts with Independent Legal Significance – stmt that satisfies a substantive law element
ii. (2) Statements offered to show the Effect on the Listener
iii. (3) Statements showing speaker’s/writer’s Knowledge of Facts Stated
iv. (4) Statements offered as Circumstantial Evidence of Declarant’s State of Mind
v. (5) Nonhuman declarations – anything from an animal or a machine

C. HEARSAY EXEMPTIONS (NONHEARSAY in FRE only; Exceptions in CA) (2)

(Declarant must testify at trial/hearing and be subject to cross)
i. (1) Opposing Party Statement (formerly Admissions of Party Opponent)
1. A statement by a party, or by someone whose statement is attributable to a party, and
is offered by an opponent, is not hearsay under the FRE. It need not have been against
the speaker’s interest when made.
a. Exemption is not subject to personal knowledge or opinion rules
i. (doesn't require PK, can testify re opinion…)
b. Adoptive Admission:
i. A party may make an admission by adopting or acquiescing in the
statement of another. Silence is NOT an adoption unless:
1. (1) the party heard and understood the statement;
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2. (2) the party could have denied the statement; and
3. (3) a reasonable person would have denied the statement
c. Vicarious Admission:
i. A statement by another can be admitted against the opposing party if:
1. (1) the person is authorized to make such statements, or
2. (2) it is an employee of the party and the statement concerns a
matter within the scope of the employment and made during
employment relationship (CA Distinction – employer liable for
employee’s words only if employee's negligence made Δ liable
for employee's conduct under respondeat superior, or
3. (3) a co-conspirator’s stmt made in furtherance of conspiracy
a. Comes w/ a Confrontation Clause issue to confront wxs
ii. (2) Statements of Witness-Declarant
1. A prior statement by a witness now testifying in court is not hearsay if:
a. (1) Prior inconsistent statement
i. Not hearsay if offered just to impeach (cannot use for truth though)
ii. If PIS with declarant’s in court testimony and was given under oath at a
prior proceeding then can use for truth (CA Distinction – applies to all
prior inconsistent statements whether given under oath or not)
b. (2) Prior consistent statement with declarant’s in court testimony offered to
rebut a recent charge of fabrication or motive to lie
c. (3) Identification of a person after perceiving that person

D. HEARSAY EXCEPTIONS (3 categories)

i. DECLARANT UNAVAILABLE EXCEPTIONS (3)
When Declarant is Deemed Unavailable
a. A declarant is unavailable if (PRISM):
i. (1) exempt from testifying due to Privilege
ii. (2 – FRE only) Refuses to testify concerning the stmt despite ct order
iii. (3) Incapacity - unable to testify due to death or physical/mental illness
iv. (4) Subpeona - absent and proponent is unable to procure attendance
by reasonable means
v. (5) lack of Memory of the subject matter of the statement
vi. (6 – CA ONLY) – refusal to testify out of fear

1. Former Testimony Exception

b. Former testimony given at another hearing or at a deposition of an unavailable
witness is admissible if:
i. (1) the party against whom the testimony is offered (or in a civil case,
the party’s predecessor in interest) was a party in the former action;
1. CA doesn't require privity type rltnshp, just similar interests
ii. (2) the former action involved the same subject matter;
iii. (3) the testimony was given under oath; and
iv. (4) party against whom testimony is offered had opportunity & similar
motive at the prior proceeding to examine the declarant’s testimony.
v. (5-CA Only) deposition testimony from same civil case if deponent
unavailable or lives more than 150 miles away
vi. (6-CA Only) former testimony offered against the person/ successor in
interest who offered it in evidence on her own behalf (no similar motive rqmt)

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2. Statements Against Interest
c. A statement of an unavailable declarant is admissible if (1) is against the
financial interest of declarant, or (2) would have subjected declarant to
criminal liability.
i. **The declarant must have personal knowledge, and statement must be
against the person’s interest when it was made**
ii. In criminal cases – there must be corroborating evidence indicating the
trustworthiness of the statement (not in CA)
1. (usually seen when Δ trying to offer proof someone else
committed the crime…must be corroboration for other's guilt)
d. CA Distinction – also adds: statements against social interest b/c it risks making
declarant an object of “hatred, ridicule, or social disgrace in the community”

3. Dying Declaration
e. A statement of an unavailable declarant is admissible in civil actions & in
homicide prosecutions (not all criminal actions) if:
i. (1) statement made believing death to be imminent, and
ii. (2) the statement concerned the cause or circumstances of what
declarant believed to be his impending death.
f. ** Declarant need NOT die. (CA Distinction here – declarant must be DEAD)
g. Declarant still must have personal knowledge of facts in statement

ii. RELIABILITY EXCEPTIONS (DECLARANT AVAILABILITY IMMATERIAL-4)

1. Excited Utterance/Spontaneous Statement
a. A statement (1) relating to a startling event or condition, (2) made while the
declarant was still under the stress of excitement caused by the event or
condition.
2. Present Sense Impression/Contemporaneous Statement
a. A statement (1) describing or explaining an event or condition, (2) made while
declarant was perceiving the event or condition or immediately thereafter.
i. Focus on timing - stmt about perception made while perceiving it
b. CA Distinction – statement must explain the conduct of the declarant made
while the declarant was engaged in that conduct.
i. CA adds: statements made at or near time of injury or threat, by
unavailable declarant, describing or explaining the infliction or threat, in
writing or recorded or made to police or medical professional, under
trustworthy circumstances. - has Confrontation issue but is on-going emergency
3. Then Existing State of Mind/Physical Condition (present tense when made)
a. A statement of declarant’s then existing physical or mental condition or
statement of mind is admissible to show that physical condition/state of mind.
i. Can be used to show intent and as circumstantial evidence that
declarant acted in accordance with intent
ii. **Does NOT include statements describing memories or beliefs to prove
those memories or beliefs**
4. Past/Present Mental or Physical Condition for Medical Diagnosis or Treatment
a. A statement (1) concerning the past or present mental or physical condition, or
its cause, of that person or another person, (2) if made for and pertinent to
medical diagnosis or treatment.
i. **Does NOT include any related statements made in conjunction**
b. CA distinction – this exception applies ONLY if the declarant is a minor
describing an act of child abuse or neglect
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c. CA adds -Stmt of unavailable declarant's past physical/mental condition
admissible if issue in the case; no requirement to have been made for medical
purposes;

iii. DOCUMENTARY EXCEPTIONS (4)

1. Business Records
a. Business records are admissible as long as:
i. (1) a record of events, conditions, opinions or diagnoses
1. (CA doesn’t include opinions or diagnosis unless simple ones)
ii. (2) kept in course of regularly conducted business activity,
iii. (3) made at or near time of matters described,
iv. (4) by person with knowledge of the facts in the record,
1. If this is present, then exception excused double hearsay
v. (5) it was regular practice of business to make such record
b. **Court may exclude if untrustworthy**
NOTE - Records created in anticipation of litigation are not business records
2. Public Records
a. Hearsay records of a public office are admissible if within one of the following
categories:
i. (1) record describes activities and policies of the office; OR
ii. (2) record describes matters observed pursuant to duty imposed by law
(but not police reports or criminal cases); OR
iii. (3) in civil actions, record contains factual findings resulting from
investigation made pursuant to authority granted by law, unless
untrustworthy. (CA allows criminal case)
3. Judgment of Prior Conviction
a. A judgment of a felony conviction is admissible in both civil and criminal cases
to prove any fact essential to the judgment.
i. In criminal cases, the judgment can only be used to prove such facts
against the Δ. May only be used to impeach other witnesses.
b. CA Distinction – This exception applies only in civil cases. Prop 8 does not
change this. Prop. 8 permits the prosecutor or Δ in a criminal case to impeach a
witness using a criminal conviction involving moral turpitude. Certified copy of
judgment of conviction can be used under Public Records exception.
4. Past Recollection Recorded - Note, doc itself doesn't come in, doc read as testimony
a. If a witness looked at a document to refresh her memory but still cannot
remember enough to testify fully and accurately, the writing can be read into
evidence as long as the following foundational elements are met:
i. (1) witness had personal knowledge of the facts at the time of writing;
ii. (2) writing was made by the witness or under her direction or adopted
by the witness;
iii. (3) writing was timely made when matter was fresh in the wx's mind;
iv. (4) writing was accurate when made; and
v. (5) witness has insufficient recollection to fully and accurately testify.

iv. CATCH-ALL EXCEPTION:

1. If a statement is not covered by one of the exceptions, it may still be admissible under
the catch-all provision if:
a. (1) The statement possesses circumstantial guarantees of trustworthiness;
b. (2) the statement is strictly necessary, and
c. (3) notice be given to the adversary of the nature of the statement.
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E. CONFRONTATION CLAUSE
i. Under the Confrontation Clause, a hearsay statement will be not admitted even if it falls within
an exception, where:
1. (1) the statement is against the accused in a criminal case
2. (2) the declarant is unavailable
3. (3) the statement was “testimonial” in nature; and
a. Testimonial if stmts made in ct or if stmts made to further a police investigation
aimed at producing evidence for the prosecution
b. Not testimonial if stmts made to police to deal w/ on-going emergency
4. (4) the accused had no opportunity to cross-examine the statement prior to trial.
a. **Δ loses this Constitutional right if he caused the declarant to be unavailable**

V. Privileges
A. In federal ct under diversity jurisdiction, state privilege law applies
B. The FRE have no specific provisions for privileges, but courts have recognized the following privileges:
i. Attorney/Client (Psychotherapist/Patient is same analysis but uses dr/patient exceptions)
1. Communication between attorney and client or their representatives are privileged as
long as (1) they are intended by client to be confidential and (2) made to facilitate
professional legal services
a. Corporations: applies to communications from employees/agents if the
corporation authorized the employee/agent to communicate to the lawyer.
i. Mere witnesses do not qualify, even if they happen to be employees
b. Lawyer’s & Client’s Representatives – also covered by the rule.
c. Survives Death of Client – the privilege survives the death of the client, and also
if the lawyer’s services are terminated (CA – privilege ends after death once
estate wound up).
2. Exceptions – privilege does NOT apply if:
a. (i) professional services sought to further what client knew or should have
known to be a crime or fraud,
b. (ii) communication relates to alleged breach of duty between lawyer and client,
c. (iii) two or more parties consult an attorney on a matter of common interest
and the communication is offered by one of these parties against another.
d. (iv) CA ONLY – no privilege if lawyer reasonably believes disclosure of
communication is necessary to prevent crime that is likely to result in death or
substantial bodily harm.

ii. Physician/Patient
1. Statutory state law privilege, unavailable at common law
2. Communication between physician/patient is privileged as long as
a. (1) there is a professional relationship
b. (2) the information is acquired while in the course of treatment, and
c. (3) information is necessary for treatment.
3. Exceptions – privilege does NOT apply if:
a. (i) patient puts physical condition in issue,
b. (ii) where physician’s services sought to aid in wrongdoing,
c. (iii) in case alleging breach of duty arising out of physician-patient relationship,
as in a malpractice action
d. (iv) no privilege to information given by a patient that deals with a nonmedical
matter, even if stated during treatment
e. (v) CA ONLY - no privilege w/ doctors in criminal cases or doctor is required to
report to a public office (gun-shot wound).
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f. (vi) CA ONLY – no privilege if psychotherapist believes the patient is danger to
himself or others,

iii. Spousal Privilege (TWO Separate Privileges) -(MBE favorite for privileges)
1. Testimonial Privilege (Spousal Immunity)
a. Only applies in a criminal case, and it allows a spousal witness to refuse to
testify against his/her spouse as to any matter.
i. (CA – applies in both civil and criminal cases).
b. There must be a valid marriage at time of testimony, and the privilege only
lasts DURING the marriage. No privilege if they are no longer married.
c. The privilege belongs to the witness-spouse, so can choose to testify.
2. Confidential Communication Privilege
a. In any civil or criminal case, any communications between spouses are
privileged. For this privilege to exist, the communications must have been
made during the marital relationship. Privilege exists even after divorce for any
communications made prior to divorce during the marriage.
b. Both spouses own the privilege, so either can prevent testimony of the other
i. Making the statement in the known presence of a stranger makes the
statement not privileged for either spouse
ii. If one spouse reveals the information to a stranger, that spouse waives
the privilege (but the other spouse may still assert it)
3. Exceptions – neither privilege applies if:
a. (1) actions between spouses
b. (2) cases involving crimes against testifying spouse or either spouse’s children

iv. ADDITIONAL CA PRIVILEGES:

1. Counselor/victim of sexual assault or domestic violence
2. Penitential communications between penitent and clergy
3. Immunity from contempt of court for news reporter who refuses to disclose sources

VI. Proposition 8 (applies to CRIMINAL cases)

A. INTRO/RULE
i. This is the “Truth in Evidence” amendment to the California Constitution.
ii. Makes all relevant evidence admissible in a criminal case, even if it is objectionable under the
CEC. The constitution overrules the CEC. However, evidence is still subject to balancing test
B. EXCEPTIONS:
1. Exclusionary rules of US constitution such as the Confrontation Clause
2. Hearsay law
3. Privilege law
4. Limits on character evidence to prove the Δ’s conduct
5. Limits on character evidence to prove the victim’s conduct
6. The secondary evidence rule
7. CEC 352 – court’s power to exclude if unfair prejudice substantially outweighs probative
value
C. APPROACH:
i. (1) raise all objections under the CEC
ii. (2) for each objection, mention if Prop. 8 overrules the objection
iii. (3) if evidence seems admissible under Prop. 8, do balancing under CEC 352.

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I. Bar Testing Tips
A. MBE Answers that are Typically Wrong
i. Inadmissible because it is not the best evidence
ii. Inadmissible because of the Dead Man's Statute
iii. Inadmissible because the evidence is self serving/prejudicial
iv. The statement is part of the res gestae
v. TV objections
vi. Evidence of polygraphs is not allowed…low probative value b/c high error rate and high
prejudicial value…so answers saying polygraph evidence can come in/be mentioned are wrong
B. Essay Question Tips
i. Raise as many objections as you can think of
ii. Raise as many arguments for admissibility as possible
iii. Always discuss relevancy for each piece of evidence

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