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CALIFORNIA EVIDENCE ESSAY WORKSHOP PROFESSOR CHRISTOPHER IDE-DON

UC DAVIS SCHOOL OF LAW

Editorial Note 1: The Professor refers to specific page numbers throughout this lecture. The content does not always match these references due to formatting changes.

CHAPTER 1: STRATEGIES; SUMMARY OF ISSUES; SUBSTANTIVE LAW

A. General Strategies

1. If the call of the question is silent, use the FRE.

2. Always discuss Logical and Legal Relevance for each item of evidence.

3. Issue Spotting—Address every issue that is reasonably raised by the facts. You only get points for the issues you discuss!

4. For all California Evidence essays (civil or criminal), start with an introductory paragraph discussing Proposition 8 and California Evidence Code (CEC) 352:

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

5. If the case is civil, add the following sentence:

This case is civil, so Prop. 8 will not be applied to the evidence.

6. For the remainder of the CA Evidence essay, you do not need to mention Prop. 8 or CEC 352.

7. Note: CEC 352 is the equivalent of FRE 403

B. Time Management Strategies

1. Outline before you write your answer

2. FINISH! You must address each item of evidence presented in the question. You may have to skip smaller issues in order to address later items of evidence.

3. Drop the rule statements in order to finish. Analysis is worth more than rules!

2 | © 2019 Themis Bar Review, LLC | CA Evidence Essay Workshop

C. Summary of Issues Tested

1. Form of question

o Leading Question o Answer provides information not asked for o Assumes facts not in evidence o Calls for Narrative

2. Purpose

o Logical relevance o Legal relevance o Character evidence

Civil Criminal

• D’s character—specific rules for prosecution, D and when D “opens the door” • V’s character—specific rules for prosecution and D

Prior bad acts

• Not admissible to show D’s criminal propensity to prove he committed the crime in question unless MIMIC evidence (motive, intent, absence of mistake, identity or common plan)

3. Witnesses

o Competence—personal knowledge o Impeachment

W’s character for truthfulness—opinion/reputation testimony admissible to attack W’s character for truthfulness (can only bolster credibility after it’s directly attacked and cross-examination rules

Criminal conviction—can be used to impeach witness’s character for truthfulness Prior inconsistent statements W bias or interest Impeachment of hearsay declarant Rehabilitation of W

o Recollection refreshed

Present recollection refreshed Past recollection recorded

o Opinion testimony—rules for lay opinion & expert witnesses

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4. Tangible evidence

o Authentication o Best Evidence Rule

5. Privileges

o Confidential communications o Spousal immunity & confidential marital communications o Attorney-client privilege o Physician/psychotherapist-patient privilege o Public policy exclusions

Subsequent remedial measures Compromise offers and negotiations Offers to pay medical expenses Liability insurance

6 . Hearsay

a. Assertive Conduct

Laughing, crying, gestures

b. Non-Hearsay Use

Effect on the listener/reader Circumstantial evidence of state of mind Legally significant verbal act

c. Double Hearsay—Hearsay within hearsay

d. Non-hearsay

Opposing party’s statement—judicial/adoptive admissions or vicarious statements Prior statements—consistent/inconsistent or identifications

e. Hearsay Exceptions

1) Declarant unavailable

• Dying declaration • Statement against interest • Unavailable declarant • Former testimony

2) Declarant availability not at issue

• Present sense impression • Excited utterance


• Business and public records • Statement of mental/emotional/physical condition • Statement made for medical diagnosis/treatment • Recorded recollection • Judgments of previous convictions

3) Residual exception

D. California Evidence Distinctions

• Prop. 8, CEC 352 • Spousal Testimony Privilege • Spontaneous Statement • Contemporaneous Statement • Statement for Medical Diagnosis/Treatment

E. Introductory Paragraph

• If prompted for California Evidence, write this introductory paragraph:

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

• If the case is civil, add this sentence:

This case is civil, so Prop. 8 will not be applied to the evidence.

F. Form of Questions

1. Leading

o Direct (leading not allowed) v. Cross-examination (leading allowed)

2. Improper

o Assumes facts not in evidence o Calls for Narrative

G. Relevance

Exam Tip 1: Always discuss Logical and Legal Relevance for each item of evidence.

1. Logical Relevance

o Why this item of evidence helpful for determining the outcome the dispute


2. Legal Relevance

o Balancing: relevant evidence can be excluded if the probative value is substantially outweighed by the danger of unfair prejudice

H. Character Evidence

Exam Tip 2: Discuss if items of evidence attack the character of a defendant, plaintiff, victim, or witness through reputation, opinion, or specific acts.

• Character evidence is generally not admissible

1. Civil Case

o If character is at issue or an essential element of a claim, it can be admissible

2. Criminal Case

o The prosecution is generally not permitted to introduce bad character evidence about a defendant

o A defendant can introduce evidence of his own good character (reputation or opinion)

Once the defendant “opens the door,” the prosecution may:

a) Call a witness to rebut the defendant’s claim of good character (reputation or opinion), or

b) Cross-examine the defendant’s character witness (reputation, opinion, OR specific bad acts)

o Note: The prosecution can ask about specific bad acts, but cannot introduce extrinsic evidence to prove it

o A defendant can introduce evidence of reputation or opinion evidence of the victim’s character, when it is relevant to the defense

Once the defendant “opens the door,” the prosecution may:

a) Introduce rebuttal evidence of the victim’s character (reputation or opinion), or

b) Attack the defendant’s character for the same trait

3. Specific Bad Acts

o Except for the limited cross-examination discussed above, the prosecution cannot introduce evidence of specific acts to prove character

o Evidence of prior bad acts may be admissible for another purpose

MIMIC: motive, intent, absence of mistake, identity, or common plan

4. Impeachment

o Evidence may be inadmissible for use as character evidence but admissible for impeachment o Impeachment attacks the credibility of the witness for telling the truth


Exam Tip 3: Impeachment is discussed more thoroughly below. It is mentioned here to remind you to discuss impeachment when you have a character analysis.

CHAPTER 2: SUBSTANTIVE LAW (CONT’D)

A. Witnesses

1. Witness Competence

A witness must have personal knowledge of a matter in order to testify about it.

2. Lay Opinion

Example 1: A witness testifies about the speed of a vehicle

A law opinion is admissible if it is based on the perception of the witness and it is helpful to understand the testimony or determine a fact in issue

3. Expert Testimony

o Be sure to identify the expert testimony and address all four elements of the analysis

Exam Tip 4: If you are not sure whether the evidence should be given by an expert, give both the lay witness and expert witness standards.

4. Present Recollection Refreshed

When a witness is unable to testify because she cannot remember, you may show the witness any document that might refresh her memory.

5. Past Recollection Recorded

o If the witness still cannot remember after being “refreshed,” the witness may be able to read the prior statement out loud.

o This raises a hearsay issue—there is an exception if the requirements are met

6. Impeachment

Exam Tip 5: Remember that impeachment should be discussed if character evidence is an issue.

o Impeachment attacks the credibility of a testifying witness

a. Opinion/reputation testimony

A witness may testify about the opinion or reputation for another witness’s truthfulness.

b. Specific instances of conduct

Generally, evidence of specific instances of conduct is not admissible You can inquire into specific bad acts on cross-examination

• This inquiry is limited to the cross-examination; extrinsic evidence is not admissible


Example 2: Witness A testifies. On cross-examination, the attorney asks, “Isn’t it true that you lied on your taxes?” If the witness denies it, this ends the inquiry into that specific conduct.

Exception: Criminal Convictions

• Evidence of a conviction for a crime of dishonesty is admissible to impeach • Evidence of a conviction for a felony is admissible to impeach • 10-year rule: If the conviction (or release) is more than 10 years old, the evidence is

only admissible if the probative value substantially outweighs the prejudicial effect

c. Prior inconsistent statements

A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach

Example 3: A witness testifies that the weather was hot and the car was speeding. In an earlier deposition, the witness had said the weather was cold and the car was not speeding. The inconsistent statement about the car speeding is admissible to impeach.

d. Bias or interest

Example 4: In a criminal trial, a witness accuses the defendant of committing the crime charged. The defense can introduce evidence of a plea bargain that the witness entered into in exchange for testifying for the prosecution.

e. Sensory competence

Example 5: A grandmother is testifying that a murder occurred 100 yards away and she “clearly” saw the defendant. The defense may introduce extrinsic evidence of the witness’s ability to see.

f. Impeachment of a hearsay declarant

Example 6: A wife testifies on the stand that her husband made a statement to her. The opposing side introduces a perjury conviction of the husband.

Extrinsic evidence of a conviction for a crime of dishonesty is admissible to attack a hearsay declarant.

g. Rehabilitation of a witness

Once a witness has been impeached, the other side can introduce rebuttal evidence by re-examining the witness, introducing another witness for reputation or opinion evidence, or by introducing a prior consistent statement.


B. Tangible Evidence

1. Authentication—the item must be genuine

Example 7: Someone presents a letter claiming it was written by the defendant. Someone who knows the defendant’s handwriting can authenticate the letter.

2. Best Evidence Rule—original document required

C. Privileges and Other Policy Exclusions

1. Privileges

a. Spousal testimonial privilege

If husband and wife are currently married and one spouse is called to testify, the testifying spouse can assert the privilege and refuse to testify against her spouse.

b. Confidential marital communications

If husband and wife had a confidential communication while married, those communications remain confidential, even after divorce

Either spouse can prevent the other from testifying at trial

c. Attorney-client privilege

2. Other Policy Exclusions

a. Subsequent remedial measures

b. Compromise offers and negotiations

c. Offers to pay medical expenses

d. Liability insurance

D. Hearsay

1. Approach

1) Write the rule—hearsay is an out of court statement being used for the truth of the matter asserted and is generally inadmissible

2) Explain why the item could be hearsay—this statement could be hearsay because…

3) Look for non-assertive conduct—only assertive conduct is barred by the hearsay rule

4) Look for non-hearsay uses—not for the truth of the matter asserted, but for another purpose

5) Look for double hearsay—define the two levels and discuss both separately

6) Discuss all relevant non-hearsay exemptions


7) Discuss all relevant hearsay exceptions

2. Hearsay

o An out-of-court statement that is offered to prove the truth of the matter asserted

a. Assertive Conduct—substitute for a statement

Example 8: Pointing, gesturing, nodding is assertive conduct

Example 9: Laughing or crying is probably not assertive conduct

b. Non-Hearsay Use—not used for the truth of the matter asserted

Example 10: Effect on the listener: a mechanic tells the defendant that his car brakes are bad. This could be viewed as a hearsay statement if used to prove the car brakes are bad. But, it may be admissible to show the defendant had knowledge of the fact that his brakes were bad (effect on the listener).

Exam Tip 6: Even if this argument is successful, do not stop the analysis.

c. Double Hearsay—hearsay within hearsay

Example 11: A written police report containing a statement made by a witness to a car crash would present two levels of hearsay. The written police report is hearsay. The written report also has a quote from the witness. The witness’s statement is also hearsay. Both levels must be admissible to admit the police report.

3. Non-Hearsay Exceptions (“exemptions”)

a. Prior statements

1) Prior inconsistent statement

2) Prior consistent statement

3) Prior statement of identification

b. Opposing party’s statements

1) Party opponent—anything the other party said is admissible for the truth of the matter asserted

2) Adoptive admission—“adopts” a statement by failing to deny it

3) Vicarious statements—someone else’s statement is imputed due to their relationship

Example 12: An employee’s statement might be attributed to the employer.


4. Hearsay Exceptions

a. Declarant Unavailable as a witness

Unavailability—dead, missing, refuses to testify, or (in a criminal trial) invokes the 5th Amendment

1) Former testimony

2) Dying declaration—declarant believes death is imminent and the statement concerns the circumstances of her death

3) Statement against interest—any declarant who is unavailable and the statement is against the declarant’s interest

4) Statement of personal/family history

5) Statement against party that caused declarant’s unavailability

b. Declarant availability immaterial

1) Present sense impression

2) Excited utterance

Exam Tip 7: Present sense impression and excited utterance are often tested together. You should discuss both when the facts are relevant.

3) Statement of mental, emotional or physical condition

4) Statement made for medical diagnosis/treatment

5) Recorded recollection

6) Business records

Exam Tip 8: Be on the lookout for double hearsay.

7) Public records

8) Learned treatises

9) Judgment of previous conviction


CHAPTER 3: EXAM QUESTIONS

A. Question 1: Transcript Style Question; July 2003, Question 3

Dan was charged with aggravated assault on Paul, an off-duty police officer, in a tavern. The prosecutor called Paul as the first witness at the criminal trial. Paul testified that he and Dan were at the tavern and that the incident arose when Dan became irate over their discussion about Dan’s ex-girlfriend. Then the following questions were asked and answers given:

Q. What happened then? [1] A: I went over to Dan and said to him, “Your ex-girlfriend Gina is living with me now.”

Q: Did Dan say anything? [2] A: He said, “Yeah, and my buddies tell me you’re treating her like dirt.”

[3] Q: Is that when he pulled the club out of his pocket? A: He sure did. Then he just sat there tapping it against the bar.

[4] Q: Tell the jury everything that happened after that. [5] A: I said that he was a fine one to be talking. I told him I’d read several police reports where Gina had called the police after he’d beaten her.

Q: Do you believe the substance of those reports? [6] A: You bet I do. I know Gina to be a truthful person.

Q: How did Dan react to this statement about the police reports? A: He hit me on the head with the club.

Q: What happened next? [7] A: I heard somebody yell, “Watch out– he’s gonna hit you again!” I ducked, but the club hit

me on the top of my head. The last thing I remember, I saw a foot kicking at my face.

Q: What happened then? [8] A: Dan must have kicked and hit me more after I passed out, because when I came to in

the hospital, I had bruises all over my body.

At each of the eight points indicated by numbers, on what grounds could an objection or a motion to strike have properly been made, and how should the trial judge have ruled on each? Discuss.


B. Question 1: Issues

1. Item #1

a. Relevance

1) Logical Relevance

2) Legal Relevance

b. Hearsay

1) Why is this statement Hearsay? Out-of-court statement to prove truth of matter asserted

2) Non-hearsay use? Effect on the listener

2. Item #2

a. Relevance

1) Logical Relevance

2) Legal Relevance

b. Hearsay

1) Why is this statement Hearsay? Out-of-court statement to prove truth of matter asserted

2) Non-hearsay use? State of mind

3) Exemption to hearsay? Opposing party’s statement

3. Item #3 . . .

Editorial Note 2: A sample answer for this question is included at the end of this lecture handout. Students are encouraged to review the sample answer independently after completing the workshop.


C. Question 2: July 2009, Question 3

While driving their cars, Paula and Dan collided and each suffered personal injuries and property damage. Paula sued Dan for negligence in a California state court and Dan filed a cross-complaint for negligence against Paula. At the ensuing jury trial, Paula testified that she was driving to meet her husband, Hank, and that Dan drove his car into hers. Paula also testified that, as she and Dan were waiting for an ambulance immediately following the accident, Dan said, “I have plenty of insurance to cover your injuries.” Paula further testified that, three hours after the accident, when a physician at the hospital to which she was taken asked her how she was feeling, she said, “My right leg hurts the most, all because that idiot Dan failed to yield the right-of-way.”

Officer, who was the investigating police officer who responded to the accident, was unavailable at the trial. The court granted a motion by Paula to admit Officer’s accident report into evidence. Officer’s accident report states: “When I arrived at the scene three minutes after the accident occurred, an unnamed bystander immediately came up to me and stated that Dan pulled right out into the path of Paula’s car. Based on this information, my interviews with Paula and Dan, and the skidmarks, I conclude that Dan caused the accident.” Officer prepared his accident report shortly after the accident.

In his case-in-chief, Dan called a paramedic who had treated Paula at the scene of the accident. Dan showed the paramedic a greeting card, and the paramedic testified that he had found the card in Paula’s pocket as he was treating her. The court granted a motion by Dan to admit the card into evidence. The card states: “Dearest Paula, Hurry home from work as fast as you can today. We need to get an early start on our weekend trip to the mountains! Love, Hank.”

Dan testified that, as he and Paula were waiting for the ambulance immediately following the accident, Wilma handed him a note. Wilma had been identified as a witness during discovery, but had died before she could be deposed. The court granted a motion by Dan to admit the note into evidence. The note says: “I saw the whole thing. Paula was speeding. She was definitely negligent.”

Assuming all appropriate objections were timely made, should the court have admitted:

1. Dan’s statement to Paula about insurance? Discuss.

2. Paula’s statement to the physician? Discuss.

3. Officer’s accident report relating to:

a. The unnamed bystander’s statement? Discuss.

b. Officer’s conclusion and its basis? Discuss.

4. Hank’s greeting card? Discuss.

5. Wilma’s note? Discuss.

Answer according to California law.


D. Question 2: Sample Answer

Paula also testified that, as she and Dan were waiting for an ambulance immediately following the accident, Dan said, “I have plenty of insurance to cover your injuries.”

Preliminary Matters

Proposition 8 is an amendment to the California Constitution that states, in part, that all relevant evidence is admissible in a criminal trial. However, the present action is a civil action for negligence and thus Proposition 8 does not apply. Under CEC 352, a judge has discretion to exclude evidence where its probative value is substantially outweighed by risk of unfair prejudice, waste of time, or confusion of the issues.

1. Dan’s statement to Paula about the insurance

Logical Relevance

In California, factual relevance is evidence that would tend to make a matter in dispute more or less probable. Here, it is in dispute whether Dan was liable. Therefore, Dan’s statement that “he has plenty of insurance to cover the injuries” will be logically relevant to making the matter of Dan’s negligence more probable.

Legal Relevance

Legal relevance means that the probative value of the evidence outweighs any prejudicial impact that the evidence may have. While Dan’s comment may be slightly prejudicial in implicating him in the matter, it is highly probative because it establishes that he could have been liable. Therefore, the comment will be found to be legally relevant.

Evidence of Insurance

In California, evidence of liability insurance is inadmissible in a civil trial to prove that the defendant was at fault or that the defendant has the ability to pay, because public policy concerns dictate that we should encourage persons to have insurance. Therefore, Paula’s testimony that Dan said he had plenty of insurance to cover the injuries should not have been admitted.

Offers to pay for injuries

In California, offers to pay another person’s medical costs are inadmissible in court to show that the defendant was at fault, or that the defendant had the ability to pay. Paula is likely introducing the evidence to show that Dan was at fault, and this is why he offered to pay her costs. Therefore, Dan’s statement that he can pay for Paula’s injuries should not be admitted.

Hearsay

Hearsay is any out-of-court statement offered to prove the truth of the matter stated therein. Hearsay is generally inadmissible in court. In this case, Dan’s statement was made out of court, and is being offered to show that Dan was liable; therefore, it will be inadmissible hearsay unless an exception applies.


Admission

In California, an admission by a party opponent is an exception to the hearsay rule. An admission includes any statement made by the opposing party that is a prior acknowledgement of any fact in the case. Here, Dan made a prior statement that he could pay for Paula’s injuries. Therefore, the statement is an admission by a party opponent, and would fall under the hearsay exception.

However, as stated above, the evidence will be inadmissible, because of the public policy rule governing the exclusion of statements made in connection with proof of insurance and statements offering to pay for the plaintiff’s injuries.

Editorial Note 3: Students are encouraged to review the remaining portions of this sample answer independently after completing the workshop.

2. P’s Statement to the Physician

A. “My right leg hurts the most…”

Logical Relevance

See rule above. Here, P’s statement tends to prove that she had injuries as a result of D’s negligence, which is in dispute. This is logically relevant.

Legal Relevance

See rule above. In this case, the probative value of D’s negligence is high and there is unfair prejudice with this evidence. The court will balance these two things before ultimately deciding it is legally relevant.

Physician-Patient Privilege

Statements made by a patient to a doctor for the purpose of obtaining medical treatment may be privileged. The patient holds the privilege and may waive it. In California, statements must be made to a licensed physician in order to be privileged. The privilege applies whether the patient is seeking treatment or diagnosis.

Here, P’s statement was made to a physician at the hospital after the physician asked how she was feeling. Paula was seeking a diagnosis at the hospital after the car accident. However, P is testifying regarding her conversation with the physician and thus, is waiving the privilege.

Therefore, privilege does not bar this testimony.

Hearsay

See rule above. P’s statement was made at the hospital, which is outside the court, and is offered to prove the truth of the matter asserted, D’s fault and P’s resulting damages. This statement is inadmissible hearsay unless it falls into an exception or exclusion.

Present Physical Condition


When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

Here, P’s statement to the physician at the hospital was in response to the physician asking how she was feeling. P responded, “My right leg hurts the most…” This statement describing her painful leg can be used to prove that she suffered personal injuries, but cannot be used to prove that D’s failure to yield caused this injury. A limiting instruction from the judge to the jury would be advisable here.

Statement Made for Medical Diagnosis or Treatment

Under the FRE, a statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. In California, this rule applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12, describing any act, or attempted act, of child abuse or neglect.

Here, it does not appear that P is minor because she is married and married people are usually over the age of 18. Additionally, P was driving a car when the accident occurred and it is unlikely she could both drive and qualify for this exception. Further, her statement was regarding her leg pain from a car accident and unrelated to child abuse. This exception does not apply.

Contemporaneous Statement

In California, a statement offered to explain, qualify, or make understandable conduct of the declarant; and made while the declarant was engaged in such conduct, is admissible.

Here, P described that her right leg pain is because D failed to yield at the right-of-way. However, P’s statement was made three hours after the accident at the hospital. This exception does not apply.

Therefore, the court could have admitted this portion of Paula’s statement for a limited purpose based on the present physical condition exception to the general hearsay rule.

B. “…Dan failed to yield…”

Logical Relevance

Here, P’s statement to the physician indicated that D failed to yield at the right-of-way, which makes D liable for her injuries. D’s liability is in dispute. This evidence is logically relevant.

Legal Relevance

Here, P’s statement is highly probative as to D’s fault and there is no potential misuse or confusion so it is legally relevant as well.

Hearsay


P’s statement was made at the hospital, which is outside the court, and is offered to prove the truth of the matter asserted, D’s fault. This statement is inadmissible hearsay unless it falls into an exception or exclusion.

Present Physical Condition

As stated above, P’s statement describing her painful leg can be used to prove that she suffered personal injuries, but cannot be used to prove that D’s failure to yield caused this injury. This part of the statement doesn’t do anything to prove P’s injuries so it will not qualify for this exception.

Therefore, the court should not have admitted this portion of P’s statement.

3. Officer’s Accident Report

Logical Relevance

In this case, the bystander’s statement and the officer’s conclusion tend to prove that D was at fault by pulling right out into the path of P’s car. D’s fault is in dispute and thus, this evidence is logically relevant.

Legal Relevance

The probative value of the bystander’s statement and the officer’s conclusion is high. However, there is a chance of unfair prejudice because the officer’s conclusion on fault may confuse the jury and they may take that conclusion as conclusive evidence. The court will weigh these two issues before deciding the evidence is legally relevant.

Hearsay

Here, Officer’s report was made outside of the court at the accident scene and its contents are offered for their truth, which is that a witness saw D pull in front of P’s car and D was at fault for the accident. This is hearsay.

Public Records

A hearsay exception applies to a record or statement of a public office or agency that sets out the: (i) activities of the office or agency; (ii) observations of a person under a duty to report the observation; or (iii) factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Here, Officer, who was an investigating police officer, made a report relating to his accident investigation. This report is what an investigating police officer does regularly in his course of employment. This is a civil case where the officer made factual findings that D caused the accident. This finding was based on the bystander’s statement, interviews with P and D, and the skid marks. However, the bystander’s statement makes this exception fail because the bystander did not have a duty to report.

Therefore, the report should not have been admitted as a public record.


Business Records

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: (i) the record was made in the regular course of business; and (iii) the record was made at or near the time by someone with knowledge. A police report can qualify under the business records exception, but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement. The statement may, however, qualify under another hearsay exception, such as an opposing party’s statement.

In this case, the police report was created in response to the accident, which is standard procedure among police departments. The officer who responded to the scene made the police report shortly after the accident, when the events were presumably still fresh in his mind.

By these standards the police report would qualify under the business records exception. However, the statement by the unnamed bystander would not qualify under this exception, it would need to qualify under a separate exception.

A. Unnamed Bystander’s Statement

Hearsay

The bystander’s statement was made at the accident scene so it is an out of court statement. It was offered for its truth, that D pulled right out into the path and P’s car and thus, was negligent. This is hearsay.

Contemporaneous Statement

See rule above. Here, the bystander immediately came up to the officer to describe what had happened. He said D pulled right into the path of P’s car. However, the bystander’s statement did not relate to his own conduct as required under California’s rule. This exception fails.

Excited Utterance

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event.

Here, the bystander described how the accident occurred. A car accident is a startling event to most people. The bystander made his statement to the police immediately after the police arrived, which was three minutes after the accident occurred. Although D will argue this is too long for a person to still be excited, the court will disagree with him. This exception will apply.

Therefore, this statement can be properly admitted into evidence in addition to the rest of the police report.

B. Officer’s Conclusion and its Basis

Lay Opinion


A lay opinion is admissible if it is rationally based upon the perception of the witness, and helpful to a clear understanding of the witness’s testimony or determination of a fact in issue. The opinion must not be based on scientific, technical, or specialized knowledge.

Here, Officer’s conclusion regarding D’s fault was based on the bystander’s statement, interviews with P and D, and the skid marks. However, Officer likely drew this conclusion based on his experience as an investigating officer, which is specialized knowledge. A lay opinion cannot be based on specialized knowledge and thus, a lay opinion was not proper here.

Expert Opinion

The subject matter of expert testimony must be scientific, technical or some other specialized knowledge, which focuses on the reliability of the testimony, and will help a trier of fact understand evidence or determine a fact at issue, which focuses on the relevance of testimony. California has adopted the Frye test when introducing novel scientific evidence. The Frye test requires a preliminary showing that the scientific theory or technique has been generally accepted as valid and reliable in the relevant scientific field.

Here, Officer was never qualified as an expert, which is required. For the reasons stated above, the officer’s conclusion was based on specialized knowledge. This conclusion of D’s fault will help the jury decide whether D was negligent. However, there was no preliminary showing of theories that the officer relied upon. Because of this and the failure to properly qualify the witness, the conclusion by the officer should not be admitted.

Therefore, despite the fact that the accident report and the unnamed bystander’s statement can be entered into evidence, the court should not have admitted the officer’s conclusion. The court will have to use a limiting instruction for the jury.

4. Hank’s (H) Greeting Card

Logical Relevance

Here, this greeting card tends to prove that P was rushing while driving to get home to H and go on vacation and thus, P’s was at fault. P’s fault is in dispute on the cross-complaint. This evidence is logically relevant.

Legal Relevance

The greeting card is probative of whether P was driving negligently when the accident occurred. There is no danger of unfair prejudice so it is legally relevant.

Hearsay

The statement contained in the card was made out of court, but is not being offered for its truth. Rather, the statement is being offered to show the effect on the listener.

Effect on Recipient

A statement offered to show the effect on the person who heard it is not hearsay.


Here, the statement in the greeting card is being offered to show that P was rushing to get home to her husband and go on vacation and thus, may have driven negligently. This is not hearsay if offered for this purpose.

Authentication

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Here, D showing the paramedic the card while the paramedic is testifying and the paramedic saying that he found the card in P’s pocket as he was treating her properly authenticated the greeting card.

Spousal Privilege

Spousal privilege comprises two distinct privileges: spousal immunity and confidential marital communications. Spousal immunity deals with spouses being forced to testify against one another, so this is not applicable in this case.

Confidential Marital Communications

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage.

In this case, P and H were married at the time the card was given to P. If the communication in the card was made in reliance on the sanctity of marriage it would be inadmissible. D will argue that the communication in the card was simply banter between two people trying to get out of town quickly after work. P will counter by arguing that the fact that the communication was in a loving card made it reliant on the sanctity of marriage. Ultimately, it is unlikely that the court would view this type of communication as privileged since it is basic conversation, not private in any nature, and not reliant on the sanctity of marriage.

Therefore, the greeting card should have been admitted.

5. Wilma’s (W) Note

Logical Relevance

W’s note tends to prove P was at fault, which is in dispute. This evidence is logically relevant.

Legal Relevance

W’s note is probative as to P’s negligence. It is not unfairly prejudicial so it is legally relevant.

Lay Opinion

See rule above. In this case, W saw the accident and said that was P was speeding in a note she gave D. A layperson can note whether a person was speeding. However, W cannot make a conclusion that P was negligent because this is a jury decision. For this reason, W’s note should not have been admitted.

Authentication


See rule above. Here, D testified that W handed him a note while he was waiting for the ambulance and thus, the note was properly authenticated.

Hearsay

W’s note was made at the accident scene so it is an out of court statement. Its contents are being offered for their truth, that P was speeding and thus, P was at fault. This is hearsay.

Excited Utterance

Here, W described how the accident occurred (P’s speeding) and a car accident is a startling event. W made the note immediately following the accident. However, when W handed D the note, there did not appear to be any excitement or stress on the part of W as the accident was over and they were all just waiting for an ambulance. Therefore, this exception does not apply.

Therefore, W’s note should not have been admitted.


E. Question 1: Sample Answer

SAMPLE ANSWER

I. “YOUR EX-GIRLFRIEND GINA IS LIVING WITH ME NOW.”

Logical Relevance

Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.

In this case, Paul’s (P) statement to Dan (D) tends to prove that D became irate over their discussion about D’s ex-girlfriend which ended in the assault on P. This evidence is logically relevant.

Legal Relevance

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

This statement is probative of D’s violent actions and does not have unfair prejudice.

Hearsay

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.

Here, P’s statement was made at the tavern, which is out of court. However, statements offered to prove something other than the truth of the mater asserted are not hearsay.

Effect on Recipient

A statement offered to show the effect on the person who heard it is not hearsay.

The defense will object to this statement on the grounds of hearsay. The prosecution will argue that this statement is not being offered for its truth, that Gina (G) is living with P, but rather that the statement instigated Dan’s actions. This is likely the case since the case at hand deals with the actions that occurred after this statement was made

This statement is not hearsay.

Therefore, the court should overrule any hearsay objection.

II. “…MY BUDDIES TELL ME YOU’RE TREATING HER LIKE DIRT.”

Logical Relevance

See rule above. Here, D’s response tends to prove that D knew P was treating his ex-girlfriend poorly, which likely agitated him and caused him to assault P. This evidence is logically relevant.

Legal Relevance

See rule above. D’s statement is probative of motive and there is no risk of unfair prejudice so it is legally relevant.


Multiple Hearsay

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception. There are two levels of hearsay here, D’s statement to P and the buddies’ statements to D. See hearsay rule above.

The defense will object to D’s statement and the statement from D’s buddies contained therein as hearsay. D’s statement was made at the tavern so it is an out of court statement. However, it is not being offered to prove that P is treating D’s ex-girlfriend poorly, but rather for the effect that the statements had on D. The same can be said for the statement from D’s buddies, that it was not going to prove that P was mistreating D’s ex-girlfriend but rather for the effect it had on D.

Since these statements are not offered for their truth, the court should overrule any hearsay objections.

III. “IS THAT WHEN HE PULLED THE CLUB OUT OF HIS POCKET?”

Logical Relevance

This evidence goes to whether D assaulted P with a club so it is logically relevant.

Legal Relevance

This evidence is very probative as to whether D assaulted P. That being said it could be unfairly prejudicial so the court will have to weight both sides before deciding that the evidence can come in.

Leading Question

A leading question is a question that suggests the answer within the question. On direct examination of a witness leading questions are generally not permitted.

Here, the prosecutor’s question to P on direct examination suggests that D pulled out a club. The defense will object to this question as leading the witness. An objection should be sustained since the questions suggests that D pulled out a club.

Assumes Facts Not in Evidence

A question that assumes facts as true that have not been established is not permitted.

In this case, there was no foundation laid to establish that D pulled a club out of his pocket and thus, this was an improper question. There should have been an objection to this type of question and the court should have sustained the objection.

Motion to Strike

The defense should make a motion to strike both the question and the answer. The court should sustain this objection.

IV. TELL THE JURY EVERYTHING THAT HAPPENED AFTER THAT.

Narrative

A question that calls for a narrative is not permitted.


Here, the question posed to P is open-ended and lacks scope, which is improper. The court does not want to allow a witness to simply talk indefinitely as it may lead to inadmissible evidence being mentioned. An objection to this type of question should have been made and the court should have sustained the objection.

Motion to Strike

The defense should make a motion to strike the narrative question and answer. The court should sustain this objection.

V. “I SAID THAT…”

A. “…HE WAS A FINE ONE TO BE TALKING”

Logical Relevance

P’s statement is logically relevant because it tends to prove D’s anger towards P and potential motive for the aggravated assault.

Legal Relevance

This statement is probative of motive and there is no unfair prejudice.

Hearsay

See rule above. The defense will object to this statement on the grounds of hearsay. However, for the reasons stated above, the prosecution will argue that this statement is being offered for the effect it had on D, not for the truth of the matter asserted.

Because this statement is not offered for its truth, the court should overrule any hearsay objection.

B. “…I’d read several police report where G had called the police after he’d beaten her.”

Logical Relevance

This statement is logically relevant because tends to prove that D is a violent person.

Legal Relevance

This statement is probative of D’s violent character. However, there is a substantial risk for unfair prejudice because both the crime for which is he is charged and the act of beating an ex-girlfriend are similar in nature. A jury could misuse this evidence and believe that D is always violent and therefore, he must be guilty of aggravated assault.

The defense should object on legal relevance grounds and the court should sustain the objection.

Best Evidence Rule

The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.


The defense should object because of the best evidence rule. Here, the police reports that P is referring to are not produced despite the fact that he is testifying to material contained within them regarding G calling the police after D beat her.

The court should sustain this objection.

Multiple Hearsay

See hearsay rule above. A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception. The defense will object to P’s out of court statement and the police report, with G’s statements within them, as hearsay.

Although G’s statements to police were made out of court, the prosecution will argue that these statements are not offered to prove that D beat her. Rather, the prosecutor will argue that these statements are being offered for the effect on the recipient. If the is the case, then the judge should overrule the hearsay objection. However, it is more likely that these statements are being offered for their truth, that D beat G. This is because the prosecution is seeking to prove that D is a violent person. Because of the use of these statements, the court should sustain the hearsay objection.

Public Records Exception

A hearsay exception applies to a record or statement of a public office or agency that sets out: (i) the activities of the office or agency; (ii) an observation of a person under a duty to report the observation; or (iii) factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Here, G’s statements regarding D beating her make this exception fail because G did not have a duty to report. She was not under any sort of duty to call the police after being beaten by D. Therefore, this exception fails.

Therefore, the court should sustain the hearsay objection for the police report.

Character Evidence

Character evidence, which is generalized information about a person’s behavior introduced to show that a person acted in accordance with that character trait, is generally inadmissible. The defendant must first open the door to his character before the prosecution can introduce any character evidence about the defendant.

The defense will object to this evidence on the grounds of impermissible character evidence as the prosecution is trying to introduce evidence that D had previously beaten G to show that D acted violently again when he assaulted P. The defendant has not first opened the door to his own character in this case so this is impermissible character evidence.

The court should sustain the defendant’s objection.

VI. “I KNOW G TO BE A TRUTHFUL PERSON.”

Logical Relevance


This evidence tends to bolster the truthfulness of G’s statements and tends to prove that D would be violent in reacting to statements about his relationship with G.

Legal Relevance

This evidence is probative of G’s tendency to tell the truth, which would lend authority to her previous statements about D beating her. There is no danger of unfair prejudice here.

Truthful Character Evidence

The credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked.

In this case, G’s character for truthfulness has not been previously attacked. The defense will object on the grounds of improper character evidence. The court should sustain this objection.

VII. “WATCH OUT- HE’S GONNA HIT YOU AGAIN!”

Logical Relevance

This evidence is logically relevant because it tend to prove that D hit P.

Legal Relevance

This evidence is legally relevant since it is probative of whether D hit P with a club. There are no reasons for it to be kept out based on relevance.

Hearsay

See rule above.

The defense will object to the person’s statement as hearsay. The prosecution will argue that although the statement was made out of court at the tavern, it is being offered to show its effect on P because he ducked in response. The court should overrule the hearsay objection.

The statement may also be offered for its truth that D was going to hit P again. If the court decides this is what the statement is being introduced for, it may fall into an exception.

Excited Utterance

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event.

Here, someone in the tavern exclaimed that P should “watch out” because D was going to hit him with the club again. Someone hitting another with a club in a bar fight is a startling event. This exception applies and this statement can also be offered for its truth.

Present Sense Impression


A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

In this case, the bar patron made his statements about what D was doing as the events were unfolding. Since the event and the statement were so close in time this exception would also apply.

Therefore, the court should overrule any hearsay objections.

VIII. “D MUST HAVE KICKED…I HAD BRUISES ALL OVER MY BODY.”

Logical Relevance

This evidence is logically relevant because it proves D can get aggressive with adequate provocation.

Legal Relevance

This evidence is legally relevant is it goes to show D kicked and hit P many times. The court will weigh this probative value against the danger prejudice and decide it is acceptable.

Personal Knowledge

A non-expert witness must have personal knowledge of a matter in order to testify about it.

Here, P was unsure what happened since he was unconscious. He speculated that D must have kicked him many times. However, P had passed out and was unsure of how he received the bruises on his body. The defense will object to P’s response on the basis of lack of personal knowledge. Also, the defense will move to have P’s response stricken from the record. The court should sustain the lack of personal knowledge objection and strike P’s response from the record.

© Themis Bar Review, LLC. All Rights Reserved.

[END OF HANDOUT]

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