evidence 2

• out of court statement
• offered to prove the truth of the matter asserted in that statement.
• statement = verbal or written expression of a person or conduct by a person intended to communicated.

• statement has independent legal significance (legal act)
• statement offered to show effect on listener.
• statement offered to show speaker's knowledge of facts stated.
• statement is circumstantial evidence of state of mind.

• exemption - not hearsay
• * statement by party, or by someone whose statement is attributable to a party, offered by a party opponent.
• vicarious party admission - statement by (i) authorized spokesperson of party or (ii) employee of party concerning matter within scope of employment and made during employment relationship.

• 1. prior inconsistent statement given under oath at trial or deposion
• 2. prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive
• 3. statement of identification of a person made after perceiving the person.

• testimony given by person in earlier proceeding or deposition is admissible if
• (1) the party against whom the testimony is now offered had, during the early proceeding, an oppertunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, or
• (2) in civil case, party against whom testimony is now offered was not present in earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. Declarant must be unavailable.

hearsay is admissible if it was made against the financial interest of declarant or would have subjected him to criminal liability. if statement offered to exculpate accused, there must be corroborating evidence to admit statement. Declarant must be unaviailble.

hearsay statement by one believing he is about to die & describing cause or circumstances leading to impending death is admissible in civil and homicide prosecution. D need not die but must be unavailable.

hearsay statement relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition. (no need for unavialibility)

admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. (no need for unavailability)

admissible to show the condition or state of mind. but a statement describing a memory or belief is not admissible to prove the fact remembered or believed. (no need for unavailability)

hearsay statement by one concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. (no need for unavailability)

hearsay statement describing felony conviction (eg, copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are imadmissible. (no need for unavailibilty)

• spousal testimonial privilege permits witness to refuse to testity against his/her spouse as to anything. applies only in criminal cases.
• spousal confidential communication privilege protects confidential spousal communications during marriage. applies in both criminal and civil cases.
• for both privileges, there must be legally valid marriage.

• makes all relevant evidence admissible in a criminal case, even if it is objectionable under the Cal Evidence Code.
• Important exceptions (these objections not overruled by prop 8):
• 1. exclusionary rules under US Constitution (like the Confrontation Clause),
• 2. hearsay law,
• 3. privilege law,
• 4. limits on character evidence to prove the defendant's conduct,
• 5. limits on character evidence to prove the victim's conduct,
• 6. the secondary evidence rule (Cal version of Best Evidence Rule), and
• 7. CEC 352 - court's power to exclude if unfair prejudice substantially outweights probative value.

• 1. raise all objections under CEC
• 2. for each objection, mention if prop 8 overrules the objection (Is the evidence relevant? Do one of the exceptions to Prop 8 apply?)
• 3. if evidence seems admissible under Prop 8, balance under CEC 352

• like the Fed definition but for CA:
• the fact of consequence also must be in dispute.

• in Fed, inadmissible to prove defective design in products liability action based on theory of strict liability.
• CA - No such rule.

CA - discussions during mediation proceedings also inadmissible.

CA also makes inadmissible admissions of fact made in the course making such payments or offers. Fed law only excludes such statements if part of a settlement offer.

CA makes inadmissible in civil actions expression of sympathy relating to suffering or death of an accident victim. but statements of fault made in connection with such an expression are not excluded. (no comparable fed rule)

• NO CA exceptions.
• one exception in fed - where claim is based on sexual assault or child molestation. in such a case, defendant's prior acts of sexual assault or child molestation are admissible to prove defendant's conduct in this case.

fed + CA: prosecution cannot be first to offer such evidence. Usually, prosecution may only rebut after defendant opens door by offering charcter evidence. Prop 8 does not change this rule in CA.

• CA only - in prosecution for crime of domestic violence, prosecution may offer evidence that defendant committed other acts of domestic violence, and
• CA only - where court has admitted evidence of victim's character for violence offered by accused, prosecution may offer evidence that accused has violent character.

• (both fed and CA) On direct, reputation and opinion are OK, but not specific instances.
• On cross, all are admissible under the FRE. CEC admits only reputation and opinion to prove defendant's character, whether on direct or cross.

• FRE - reputation and opinion evidence admissible; no specific instances on direct, but OK on cross.
• CA - reputation, opinion, and specific instances permitted on both direct and cross.

witness also must understand duty to tell truth

a witness' prior statement identifying a person after perceiving him is nonhearsay under the FRE and is a hearsay exception under CA law. However, in order to protect the defendant's rights, the declarant-witness must testify at trial and be subject to cross-examination.