CALIFORNIA EVIDENCE ESSAY WORKSHOP PROFESSOR CHRISTOPHER IDE-DON UC DAVIS SCHOOL OF LAW

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1 CALIFORNIA EVIDENCE ESSAY WORKSHOP PROFESSOR CHRISTOPHER IDE-DON UC DAVIS SCHOOL OF LAW CHAPTER 1: STRATEGIES; SUMMARY OF ISSUES; SUBSTANTIVE LAW A. General Strategies 1. If the call f the questin is silent, use the FRE. 2. Always discuss Lgical and Legal Relevance fr each item f evidence. 3. Issue Sptting Address every issue that is reasnably raised by the facts. Yu nly get pints fr the issues yu discuss! 4. Fr all Califrnia Evidence essays (civil r criminal), start with an intrductry paragraph discussing Prpsitin 8 and Califrnia Evidence Cde (CEC) 352: Under Prpsitin 8 f the Califrnia Cnstitutin (hereafter Prp. 8), any evidence that is relevant may be admitted in a criminal case. Hwever, Prp. 8 makes an exceptin fr balancing under Califrnia Evidence Cde (hereafter CEC) 352, which gives a curt discretin in excluding relevant evidence if its prbative value is substantially utweighed by a risk f unfair prejudice, cnfusin f issues, r misleading the jury. 5. If the case is civil, add the fllwing sentence: This case is civil, s Prp. 8 will nt be applied t the evidence. 6. Fr the remainder f the CA Evidence essay, yu d nt need t mentin Prp. 8 r CEC Nte: CEC 352 is the equivalent f FRE 403 B. Time Management Strategies 8. Outline befre yu write yur answer 9. FINISH! Yu must address each item f evidence presented in the questin. Yu may have t skip smaller issues in rder t address later items f evidence. 10. Drp the rule statements in rder t finish. Analysis is wrth mre than rules!

2 C. Summary f Issues Tested 1. Frm f questin Editr's Nte 1: The Prfessr refers t specific page numbers thrughut this lecture. The cntent des nt always match these references due t frmatting changes. Leading Questin Answer prvides infrmatin nt asked fr Assumes facts nt in evidence Calls fr Narrative 2. Purpse Lgical relevance Legal relevance Character evidence Civil Criminal D s character specific rules fr prsecutin, D and when D pens the dr V s character specific rules fr prsecutin and D Prir bad acts Nt admissible t shw D s criminal prpensity t prve he cmmitted the crime in questin unless MIMIC evidence (mtive, intent, absence f mistake, identity r cmmn plan) 3. Witnesses Cmpetence persnal knwledge Impeachment W s character fr truthfulness pinin/reputatin testimny admissible t attack W s character fr truthfulness (can nly blster credibility after it s directly attacked and crss-examinatin rules Criminal cnvictin can be used t impeach witness s character fr truthfulness Prir incnsistent statements W bias r interest Impeachment f hearsay declarant Rehabilitatin f W Recllectin refreshed Present recllectin refreshed Past recllectin recrded Themis Bar Review, LLC CA Evidence Essay Wrkshp

3 Opinin testimny rules fr lay pinin & expert witnesses 4. Tangible evidence Authenticatin Best Evidence Rule 5. Privileges Cnfidential cmmunicatins Spusal immunity & cnfidential marital cmmunicatins Attrney-client privilege Physician/psychtherapist-patient privilege Public plicy exclusins Subsequent remedial measures Cmprmise ffers and negtiatins Offers t pay medical expenses Liability insurance 6. Hearsay a. Assertive Cnduct Laughing, crying, gestures b. Nn-Hearsay Use Effect n the listener/reader Circumstantial evidence f state f mind Legally significant verbal act c. Duble Hearsay Hearsay within hearsay d. Nn-hearsay Oppsing party s statement judicial/adptive admissins r vicarius statements Prir statements cnsistent/incnsistent r identificatins e. Hearsay Exceptins 1) Declarant unavailable Dying declaratin Statement against interest Unavailable declarant Frmer testimny 2) Declarant availability nt at issue Present sense impressin CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 3

4 Excited utterance Business and public recrds Statement f mental/emtinal/physical cnditin Statement made fr medical diagnsis/treatment Recrded recllectin Judgments f previus cnvictins 3) Residual exceptin D. Califrnia Evidence Distinctins Prp. 8, CEC 352 Spusal Testimny Privilege Spntaneus Statement Cntempraneus Statement Statement fr Medical Diagnsis/Treatment E. Intrductry Paragraph If prmpted fr Califrnia Evidence, write this intrductry paragraph: Under Prpsitin 8 f the Califrnia Cnstitutin (hereafter Prp. 8), any evidence that is relevant may be admitted in a criminal case. Hwever, Prp. 8 makes an exceptin fr balancing under Califrnia Evidence Cde (hereafter CEC) 352, which gives a curt discretin in excluding relevant evidence if its prbative value is substantially utweighed by a risk f unfair prejudice, cnfusin f issues, r misleading the jury. If the case is civil, add this sentence: This case is civil, s Prp. 8 will nt be applied t the evidence. F. Frm f Questins 1. Leading Direct (leading nt allwed) v. Crss-examinatin (leading allwed) 2. Imprper Assumes facts nt in evidence Calls fr Narrative G. Relevance Exam Tip 1: Always discuss Lgical and Legal Relevance fr each item f evidence Themis Bar Review, LLC CA Evidence Essay Wrkshp

5 1. Lgical Relevance Why this item f evidence helpful fr determining the utcme the dispute 2. Legal Relevance Balancing: relevant evidence can be excluded if the prbative value is substantially utweighed by the danger f unfair prejudice H. Character Evidence Exam Tip 2: Discuss if items f evidence attack the character f a defendant, plaintiff, victim, r witness thrugh reputatin, pinin, r specific acts. Character evidence is generally nt admissible 1. Civil Case If character is at issue r an essential element f a claim, it can be admissible 2. Criminal Case The prsecutin is generally nt permitted t intrduce bad character evidence abut a defendant A defendant can intrduce evidence f his wn gd character (reputatin r pinin) Once the defendant pens the dr, the prsecutin may: a) Call a witness t rebut the defendant s claim f gd character (reputatin r pinin), r b) Crss-examine the defendant s character witness (reputatin, pinin, OR specific bad acts) Nte: The prsecutin can ask abut specific bad acts, but cannt intrduce extrinsic evidence t prve it A defendant can intrduce evidence f reputatin r pinin evidence f the victim s character, when it is relevant t the defense Once the defendant pens the dr, the prsecutin may: a) Intrduce rebuttal evidence f the victim s character (reputatin r pinin), r b) Attack the defendant s character fr the same trait 3. Specific Bad Acts Except fr the limited crss-examinatin discussed abve, the prsecutin cannt intrduce evidence f specific acts t prve character Evidence f prir bad acts may be admissible fr anther purpse MIMIC: mtive, intent, absence f mistake, identity, r cmmn plan CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 5

6 4. Impeachment Evidence may be inadmissible fr use as character evidence but admissible fr impeachment Impeachment attacks the credibility f the witness fr telling the truth Exam Tip 3: Impeachment is discussed mre thrughly belw. It is mentined here t remind yu t discuss impeachment when yu have a character analysis. CHAPTER 2: SUBSTANTIVE LAW (CONT D) A. Witnesses 1. Witness Cmpetence A witness must have persnal knwledge f a matter in rder t testify abut it. 2. Lay Opinin Example 1: A witness testifies abut the speed f a vehicle A law pinin is admissible if it is based n the perceptin f the witness and it is helpful t understand the testimny r determine a fact in issue 3. Expert Testimny Be sure t identify the expert testimny and address all fur elements f the analysis Exam Tip 4: If yu are nt sure whether the evidence shuld be given by an expert, give bth the lay witness and expert witness standards. 4. Present Recllectin Refreshed When a witness is unable t testify because she cannt remember, yu may shw the witness any dcument that might refresh her memry. 5. Past Recllectin Recrded If the witness still cannt remember after being refreshed, the witness may be able t read the prir statement ut lud. This raises a hearsay issue there is an exceptin if the requirements are met 6. Impeachment Exam Tip 5: Remember that impeachment shuld be discussed if character evidence is an issue. Impeachment attacks the credibility f a testifying witness a. Opinin/reputatin testimny A witness may testify abut the pinin r reputatin fr anther witness s truthfulness Themis Bar Review, LLC CA Evidence Essay Wrkshp

7 b. Specific instances f cnduct Generally, evidence f specific instances f cnduct is nt admissible Yu can inquire int specific bad acts n crss-examinatin This inquiry is limited t the crss-examinatin; extrinsic evidence is nt admissible Example 2: Witness A testifies. On crss-examinatin, the attrney asks, Isn t it true that yu lied n yur taxes? If the witness denies it, this ends the inquiry int that specific cnduct. Exceptin: Criminal Cnvictins Evidence f a cnvictin fr a crime f dishnesty is admissible t impeach Evidence f a cnvictin fr a felny is admissible t impeach 10-year rule: If the cnvictin (r release) is mre than 10 years ld, the evidence is nly admissible if the prbative value utweighs the prejudicial effect c. Prir incnsistent statements A witness s prir statement that is incnsistent with the witness s current testimny is admissible t impeach Example 3: A witness testifies that the weather was ht and the car was speeding. In an earlier depsitin, the witness had said the weather was cld and the car was nt speeding. The incnsistent statement abut the car speeding is admissible t impeach. d. Bias r interest Example 4: In a criminal trial, a witness accuses the defendant f cmmitting the crime charged. The defense can intrduce evidence f a plea bargain that the witness entered int in exchange fr testifying fr the prsecutin. e. Sensry cmpetence Example 5: A grandmther is testifying that a murder ccurred 100 yards away and she clearly saw the defendant. The defense may intrduce extrinsic evidence f the witness s ability t see. f. Impeachment f a hearsay declarant Example 6: A wife testifies n the stand that her husband made a statement t her. The ppsing side intrduces a perjury cnvictin f the husband. Extrinsic evidence f a cnvictin fr a crime f dishnesty is admissible t attack a hearsay declarant. CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 7

8 g. Rehabilitatin f a witness Once a witness has been impeached, the ther side can intrduce rebuttal evidence by reexamining the witness, intrducing anther witness fr reputatin r pinin evidence, r by intrducing a prir cnsistent statement. B. Tangible Evidence 1. Authenticatin the item must be genuine Example 7: Smene presents a letter claiming it was written by the defendant. Smene wh knws the defendant s handwriting can authenticate the letter. 2. Best Evidence Rule riginal dcument required C. Privileges and Other Plicy Exclusins 1. Privileges a. Spusal testimnial privilege If husband and wife are currently married and ne spuse is called t testify, the testifying spuse can assert the privilege and refuse t testify against her spuse. b. Cnfidential marital cmmunicatins If husband and wife had a cnfidential cmmunicatin while married, thse cmmunicatins remain cnfidential, even after divrce Either spuse can prevent the ther frm testifying at trial c. Attrney-client privilege 2. Other Plicy Exclusins a. Subsequent remedial measures b. Cmprmise ffers and negtiatins c. Offers t pay medical expenses d. Liability insurance Themis Bar Review, LLC CA Evidence Essay Wrkshp

9 D. Hearsay 1. Apprach 1) Write the rule hearsay is an ut f curt statement being used fr the truth f the matter asserted and is generally inadmissible 2) Explain why the item culd be hearsay this statement culd be hearsay because 3) Lk fr nn-assertive cnduct nly assertive cnduct is barred by the hearsay rule 4) Lk fr nn-hearsay uses nt fr the truth f the matter asserted, but fr anther purpse 5) Lk fr duble hearsay define the tw levels and discuss bth separately 6) Discuss all relevant nn-hearsay exemptins 7) Discuss all relevant hearsay exceptins 2. Hearsay An ut-f-curt statement that is ffered t prve the truth f the matter asserted a. Assertive Cnduct substitute fr a statement Example 8: Example 9: Pinting, gesturing, ndding is assertive cnduct Laughing r crying is prbably nt assertive cnduct b. Nn-Hearsay Use nt used fr the truth f the matter asserted Example 10: Effect n the listener: a mechanic tells the defendant that his car brakes are bad. This culd be viewed as a hearsay statement if used t prve the car brakes are bad. But, it may be admissible t shw the defendant had knwledge f the fact that his brakes were bad (effect n the listener). Exam Tip 6: Even if this argument is successful, d nt stp the analysis. c. Duble Hearsay hearsay within hearsay Example 11: A written plice reprt cntaining a statement made by a witness t a car crash wuld present tw levels f hearsay. The written plice reprt is hearsay. The written reprt als has a qute frm the witness. The witness s statement is als hearsay. Bth levels must be admissible t admit the plice reprt. CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 9

10 3. Nn-Hearsay Exceptins ( exemptins ) a. Prir statements 1) Prir incnsistent statement 2) Prir cnsistent statement 3) Prir statement f identificatin b. Oppsing party s statements 1) Party ppnent anything the ther party said is admissible fr the truth f the matter asserted 2) Adptive admissin adpts a statement by failing t deny it 3) Vicarius statements smene else s statement is imputed due t their relatinship 4. Hearsay Exceptins Example 12: An emplyee s statement might be attributed t the emplyer. a. Declarant Unavailable as a witness Unavailability dead, missing, refuses t testify, r (in a criminal trial) invkes the 5 th Amendment 1) Frmer testimny 2) Dying declaratin declarant believes death is imminent and the statement cncerns the circumstances f her death 3) Statement against interest any declarant wh is unavailable and the statement is against the declarant s interest 4) Statement f persnal/family histry 5) Statement against party that caused declarant s unavailability b. Declarant availability immaterial 1) Present sense impressin 2) Excited utterance Exam Tip 7: Present sense impressin and excited utterance are ften tested tgether. Yu shuld discuss bth when the facts are relevant. 3) Statement f mental, emtinal r physical cnditin 4) Statement made fr medical diagnsis/treatment 5) Recrded recllectin 6) Business recrds Themis Bar Review, LLC CA Evidence Essay Wrkshp

11 Exam Tip 8: Be n the lkut fr duble hearsay. 7) Public recrds 8) Learned treatises 9) Judgment f previus cnvictin CHAPTER 3: EXAM QUESTIONS A. Questin 1: Transcript Style Questin QUESTION 3, JULY 2003 Dan was charged with aggravated assault n Paul, an ff-duty plice fficer, in a tavern. The prsecutr called Paul as the first witness at the criminal trial. Paul testified that he and Dan were at the tavern and that the incident arse when Dan became irate ver their discussin abut Dan s ex-girlfriend. Then the fllwing questins were asked and answers given: Q. What happened then? [1] A: I went ver t Dan and said t him, Yur ex-girlfriend Gina is living with me nw. Q: Did Dan say anything? [2] A: He said, Yeah, and my buddies tell me yu re treating her like dirt. [3] Q: Is that when he pulled the club ut f his pcket? 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 ne t be talking. I tld him I d read several plice reprts where Gina had called the plice after he d beaten her. Q: D yu believe the substance f thse reprts? [6] A: Yu bet I d. I knw Gina t be a truthful persn. Q: Hw did Dan react t this statement abut the plice reprts? A: He hit me n the head with the club. Q: What happened next? [7] A: I heard smebdy yell, Watch ut he s gnna hit yu again! I ducked, but the club hit me n the tp f my head. The last thing I remember, I saw a ft kicking at my face. Q: What happened then? [8] A: Dan must have kicked and hit me mre after I passed ut, because when I came t in the hspital, I had bruises all ver my bdy. At each f the eight pints indicated by numbers, n what grunds culd an bjectin r a mtin t strike have prperly been made, and hw shuld the trial judge have ruled n each? Discuss. CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 11

12 B. Questin 1: Issues 1. Item #1 a. Relevance 1) Lgical Relevance 2) Legal Relevance b. Hearsay 1) Why is this statement Hearsay? Out-f-curt statement t prve truth f matter asserted 2) Nn-hearsay use? Effect n the listener 2. Item #2 a. Relevance 1) Lgical Relevance 2) Legal Relevance b. Hearsay 1) Why is this statement Hearsay? Out-f-curt statement t prve truth f matter asserted 2) Nn-hearsay use? State f mind 3) Exemptin t hearsay? Oppsing party s statement 3. Item # Themis Bar Review, LLC CA Evidence Essay Wrkshp

13 C. Questin 2 QUESTION 3, JULY 2009 While driving their cars, Paula and Dan cllided and each suffered persnal injuries and prperty damage. Paula sued Dan fr negligence in a Califrnia state curt and Dan filed a crss-cmplaint fr negligence against Paula. At the ensuing jury trial, Paula testified that she was driving t meet her husband, Hank, and that Dan drve his car int hers. Paula als testified that, as she and Dan were waiting fr an ambulance immediately fllwing the accident, Dan said, I have plenty f insurance t cver yur injuries. Paula further testified that, three hurs after the accident, when a physician at the hspital t which she was taken asked her hw she was feeling, she said, My right leg hurts the mst, all because that idit Dan failed t yield the right-f-way. Officer, wh was the investigating plice fficer wh respnded t the accident, was unavailable at the trial. The curt granted a mtin by Paula t admit Officer s accident reprt int evidence. Officer s accident reprt states: When I arrived at the scene three minutes after the accident ccurred, an unnamed bystander immediately came up t me and stated that Dan pulled right ut int the path f Paula s car. Based n this infrmatin, my interviews with Paula and Dan, and the skidmarks, I cnclude that Dan caused the accident. Officer prepared his accident reprt shrtly after the accident. In his case-in-chief, Dan called a paramedic wh had treated Paula at the scene f the accident. Dan shwed the paramedic a greeting card, and the paramedic testified that he had fund the card in Paula s pcket as he was treating her. The curt granted a mtin by Dan t admit the card int evidence. The card states: Dearest Paula, Hurry hme frm wrk as fast as yu can tday. We need t get an early start n ur weekend trip t the muntains! Lve, Hank. Dan testified that, as he and Paula were waiting fr the ambulance immediately fllwing the accident, Wilma handed him a nte. Wilma had been identified as a witness during discvery, but had died befre she culd be depsed. The curt granted a mtin by Dan t admit the nte int evidence. The nte says: I saw the whle thing. Paula was speeding. She was definitely negligent. Assuming all apprpriate bjectins were timely made, shuld the curt have admitted: 1. Dan s statement t Paula abut insurance? Discuss. 2. Paula s statement t the physician? Discuss. 3. Officer s accident reprt relating t: a. The unnamed bystander s statement? Discuss. b. Officer s cnclusin and its basis? Discuss. 4. Hank s greeting card? Discuss. 5. Wilma s nte? Discuss. Answer accrding t Califrnia law. CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 13

14 D. Questin 2: Sample Answer (Excerpt) Paula als testified that, as she and Dan were waiting fr an ambulance immediately fllwing the accident, Dan said, I have plenty f insurance t cver yur injuries. Preliminary Matters Prpsitin 8 is an amendment t the Califrnia Cnstitutin that states, in part, that all relevant evidence is admissible in a criminal trial. Hwever, the present actin is a civil actin fr negligence and thus Prpsitin 8 des nt apply. Under CEC 352, a judge has discretin t exclude evidence where its prbative value is substantially utweighed by risk f unfair prejudice, waste f time, r cnfusin f the issues. 1. Dan s statement t Paula abut the insurance Lgical Relevance In Califrnia, factual relevance is evidence that wuld tend t make a matter in dispute mre r less prbable. Here, it is in dispute whether Dan was liable. Therefre, Dan s statement that he has plenty f insurance t cver the injuries will be lgically relevant t making the matter f Dan s negligence mre prbable. Legal Relevance Legal relevance means that the prbative value f the evidence utweighs any prejudicial impact that the evidence may have. While Dan s cmment may be slightly prejudicial in implicating him in the matter, it is highly prbative because it establishes that he culd have been liable. Therefre, the cmment will be fund t be legally relevant. Evidence f Insurance In Califrnia, evidence f liability insurance is inadmissible in a civil trial t prve that the defendant was at fault r that the defendant has the ability t pay, because public plicy cncerns dictate that we shuld encurage persns t have insurance. Therefre, Paula s testimny that Dan said he had plenty f insurance t cver the injuries shuld nt have been admitted. Offers t pay fr injuries In Califrnia, ffers t pay anther persn s medical csts are inadmissible in curt t shw that the defendant was at fault, r that the defendant had the ability t pay. Paula is likely intrducing the evidence t shw that Dan was at fault, and this is why he ffered t pay her csts. Therefre, Dan s statement that he can pay fr Paula s injuries shuld nt be admitted Themis Bar Review, LLC CA Evidence Essay Wrkshp

15 Hearsay Hearsay is any ut-f-curt statement ffered t prve the truth f the matter stated therein. Hearsay is generally inadmissible in curt. In this case, Dan s statement was made ut f curt, and is being ffered t shw that Dan was liable; therefre, it will be inadmissible hearsay unless an exceptin applies. Admissin In Califrnia, an admissin by a party ppnent is an exceptin t the hearsay rule. An admissin includes any statement made by the ppsing party that is a prir acknwledgement f any fact in the case. Here, Dan made a prir statement that he culd pay fr Paula s injuries. Therefre, the statement is an admissin by a party ppnent, and wuld fall under the hearsay exceptin. Hwever, as stated abve, the evidence will be inadmissible, because f the public plicy rule gverning the exclusin f statements made in cnnectin with prf f insurance and statements ffering t pay fr the plaintiff s injuries. *** [END OF HANDOUT] CA Evidence Essay Wrkshp 2016 Themis Bar Review, LLC 15

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