Evidence I Mentor Outline

 
Disclaimer: This outline does not contain every issue in the class. The rules and application are from
my understanding. If the rules or the application is inconsistent with your professor or your notes, go
with the professor’s application of the law.

Relevance
 
Logical Relevance:
Evidence is logically relevant if it tends to make a fact in issue more likely or less likely than it would be without
the evidence.
 
Legal Relevance
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by schedule consideration.
 
Competency, Personal Knowledge, Authentication

Competency
A testifying witness must have personal knowledge and take an oath that they will tell truth. Personal
knowledge is testifying to facts observed and having present recollection.
 
Authentication
All real and demonstrative evidence must be authenticated, meaning it must be what the proponent claims it to
be.
 
Hearsay
An out of court statement, being brought into court, offered for the purpose of establishing the truth of the
matter asserted in that statement.
 
Components to Hearsay:
1. Declarant - the person who made the out of court statement.
2. Statement - tested in 3 forms:
i. Oral out of court statement
ii. Writing (i.e. documents, convictions)
iii. Conduct - assertive and non-assertive
 
 Assertive conduct - is treated like a statement because it has the effect of a statement
(i.e. nodding your head instead of saying yes) and is generally hearsay.
 
 Non-assertive conduct - not hearsay
 
3. Out of court - must be out of the court they are currently in
4. Prove truth of matter asserted
 
Hearsay Approach:
1. Identify the statement
2. Ask what is it being offered to prove.
3. Given what it is offered to prove, do we care if it is a lie? If we care, then it is hearsay.
 
Multiple Hearsay
Hearsay included within hearsay. Multiple hearsay is not excluded under the hearsay rule if each part of
the combined statements has an applicable exception.

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Non-Hearsay - Exclusions:
An out of court declaration may be offered into evidence for other purposes than to prove the truth of the
matter asserted is not hearsay.
 
1. Independent Legal Significance/ Operative Facts
A statement that has legal effect is not hearsay because it's not used for the truth, rather a statement was
made.
 
a. Contracts - spoken words of a contract (i.e. I offer, I accept, I reject) are words of legal significance.
b. Defamation - "X is a thief" - words of operative facts
 
 
2. Effect on Listener/ Hearer
Statements which are relevant for the effect of the reader or listener, not for the truth of the matter
asserted.
 
a. Fear - to show certain emotion in hearer or reader - to show subsequent behavior.
 
Example: D is on trial for murder and claims self-defense. W testifies that V say to D, "I'm going to
cut your head off." This is an out of court statement but not used to prove the truth of the matter
being asserted. It is being used to show that D has an actual and reasonable fear for his life and
makes the self-defense claim more likely.
 
b. Notice/ Knowledge – used not for truth but to show notice or knowledge
 
Example: P sues D, hospital for negligence in hiring X as a doctor after he messed up P's hip. X
had previous records from bad hospitals. P can bring them in, not to prove he is a bad doctor (truth
of matter) but rather to show the files were not seen by D when hiring - thus negligent in hiring.
 
3. Declarants Indirect State of Mind (indirect state of mind - don’t confuse with state of mind exception)
Not being offered for the truth, rather to show indirectly (or circumstantially) the declarant's state of mind.
It can be used to show knowledge, mental state, insanity, motive or intent.
 
Note- if the statement directly describes, then you may have state of mind hearsay exception.
 
Examples:
 "I am the Pope" being offered to show defendant is insane. It is not hearsay because it is not
being used to prove he is the Pope.
 Bringing in the statement, "I hate Patty" to show that Dan hates Patty is hearsay because the
statement is being used to show Dan hates Patty. If you bring in the statement, "I think Patty is
a lying, cheating thief." You may argue not hearsay because it is being used to show Dan
hates Patty - we aren't brining it in to show Patty is a thief.
 
4. Prior Inconsistent Statement: When a witness testimony is inconsistent with a previous out-of-court
statement where the witness told a different story. The opposing party can bring the prior statement in not
for the truth but rather to impeach witness's creditability. (Not using it for the trust, just to impeach and
show the W is not creditable)
 
5. Machine or Animals: Hearsay only applies to declarations made by human - i.e.: testimony about a radar
gun or drug-sniffing dog not hearsay.
 

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 Hearsay Exceptions (and FRE Exemptions)

Admission
o Federal - admission exemption and is NOT hearsay
o California - admission is a hearsay exception
 
1. Admission by Party Opponent
An opposing party's admission is not considered hearsay if it is offered against that party and is the
party's own statement, in either an individual or representative capacity. No personal knowledge needed.
 
Elements:
1. Statement made by party
2. Offered by opponent
 
2. Adoptive Admission
A statement that a non-party makes and the party adopts it to be true.
 
Tacit Admission - would a reasonable person would have denied such statement under the
circumstances? (i.e. D remaining silent while under arrest is not adopting any statement if he is
asked an incriminating statement)
 
Examples
a. D charged with bank robbery. W testifies that prior to robbery, D tells W he was going to rob a
bank. Three weeks later, he sees D with money and diamond rings. W makes a comment
about his money and rings and D's girlfriends says, "that ain't nothing, you should see what he
has back at the hotel." D remains silent. Prosecution want to bring in the girlfriend's statement
as an admission by D, on the theory that D remained silent, thus adopting it as true - court
said it was admissible under the totality of circumstances, human behavior would have D
denied it if it wasn’t true.
 
b. D throws sand in P's eyes. P sues for eye damage. D offers evidence from a job application,
submitted two weeks after incident, which P attached a certified eye doctor examination. The
examination states P has perfect eye sight. This certification would be an adoptive admission
since P is adopting to be true by sending it.
 
3. Party Authorized
A statement may be may offered against a party if it is a statement by a person authorized by the party to
make a statements concerning the subject.
 
Elements:
1. Statement offered against a party
2. Person authorized to make such statement (i.e. high ranking officials, spokesperson, CEO)
3. Concerns the matter.
 
4. Authorized by Party Agent
A statement may be offered against a party if it was made by the (1) party's agent on matter within the (2)
scope of that relationship (3) during employment relationship. California does not recognize Party Agent
 
Elements
1. Agent (i.e.: truck driver of a company)
2. Scope (i.e. truck driver telling boss brakes don’t work)
3. Statement made while still working for party
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5. Co - Conspirators
A statement may be may offered against a party if it was (1) made by the party’s co-conspirator (2)
during the course of the conspiracy and in (3) furtherance of the conspiracy.
 
Elements:
1. Co- conspirator
2. During the course of conspiracy
3. Furtherance of conspiracy
 
Note - may trigger Confrontational Clause - Crawford
 
Excited Utterance
A statement relating to a starling event, made while the declarant was under the stress of excitement which
caused it.
California calls this exception "spontaneous statement."
 
Elements
1. Exciting event
2. Statement concerning event
3. Under stress from event
 Look to facts: Did declarant say "I can't believe it!!" or "she calmly stated"
 
Present Sense Impression
A statement describing or explaining an event or condition made while or immediately after the declarant
perceived it.
California calls this exception "contemporaneous statement."
 
Elements:
1. Said while or immediately after the event - timing is key!
2. Describes the event
 
Note- no exciting event required
 
State of Mind
A statement of the declarant’s then existing state of mind, emption, or physical feeling, which is not a fact
remembered or believed, is admissible.
 
 Statement to show declarant's intent or plan may be used to show he actually carried out that intent of
plan (Hillman Exception)
 Statement used to show a fact that is remembered or believed - not admissible.
 
Medical Diagnosis
A statement describing past or present mental or physical condition that is made for and pertinent to the
medical diagnosis or treatment, is admissible.
California: Allows but only if declarant is a minor and describes a form of abuse.
 
Elements
1. Describes mental / physical condition (past or present)
2. Made to get medical treatment - does not have to be to doctor - can be EMT, nurse, custodian,
parents, friend

Dying Declaration

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A statement made, by declarant now unavailable, under the belief of impending death and describes or
concerns the cause of the impending death, is admissible.
Federal: All civil and homicide prosecution cases (not all criminal)
California: All civil and all criminal

Elements
1. Unavailable (California - must be dead; Federal - just unavailable)
2. Belief in imminent death - look to statement: "I'm a goner" vs. "Get a doctor!"
3. Statement concerns the death.
 
Note - may trigger Confrontational Clause - Crawford. Dying declaration is a Crawford Exception
 
Declaration Against Interest
A statement made by declarant, who is unavailable, is admissible if at time it is made it is against pecuniary
(financial) interest or proprietary (criminal liability) interest. California: Allows statements that would subject
declarant to hatred, ridicule, social disgust (aka reputational interest).
 
Elements
1. Unavailable
2. Against financial or criminal liability
 If that statement is used to exculpate an accused - must have corroborating circumstances for
statement to be admitted (i.e. spontaneity)
 Note - collateral statements or self -serving will not be admissible and often times stuck out (i.e.:
I did pick up the drugs, but X paid me to do it)
3. Made at time it was against interest
 
Note - may trigger Confrontational Clause - Crawford
 
Former Testimony
Testimony given as a witness at a hearing of the same or different proceedings, if the party against whom the
testimony is now offered, or in a civil action, the predecessor in interest, had the opportunity and similar motive
to cross is admissible.
 
Elements
1. Unavailable
2. During other proceedings (Grand Jury not included b/c you cannot cross examine- exam trap)
3. Opportunity to cross exam with similar motive
i. Civil: Parties can be different but the predecessor in interest must have the same motive.
a. Predecessor in interest - a party in a previously related civil case who was in a similar
position and dealt with similar issues and facts as a party in the current case - having
similar motive as current party when they crossed examined.  
ii. Criminal: Opponent must be the same
 
Note - Does not actually have to cross examine, only have opportunity.
Note - may trigger Confrontational Clause - Crawford
 
 Forfeiture by Wrong Doing
A statement offered against a party opponent that wrongfully causes the declarant’s unavailability is
admissible.
 Not always just killing off witness. Look to why the witness is unavailable (i.e. witness all of a sudden has
amnesia and came into money)
 Note - may trigger Confrontational Clause - Crawford

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Business Record
A writing of an event, condition, opinion or diagnosis made during the course of regularly conducted business,
by someone with a duty to record, at or near the time the event occurred is admissible if it is authenticated by
the custodian of records. Court may excluded if there is lack of trustworthiness.
 
Elements
1. Writing of event, condition, opinion or diagnosis
 California: Does not accept opinions or diagnosis but will allow for medical records with simple
opinions or diagnosis
2. Made during the course of regularly conducted business
3. By person with duty to record
4. At the time or near event
5. Authenticated by custodian or records
6. Trustworthiness
 
Note- usually triggers multiple hearsay discussion.
 
Public Record
A record made by a public agency is admissible if (1) made by someone with duty to record, (2) describes that
agency's activities and (3) the facts in the record are from an investigation pursuant to that agency's authority.
 
Elements
1. Made by someone with duty to make such record
2. Describes that particular agency or offices' activity
3. Record has facts or findings that are from an investigation pursuant to that authority
 
Example: IRS auditor comes into someone's home and sees a lot of cocaine. He writes in his report. That
report is not admissible because it was not done as part of investigation pursuant to his authority (being
an IRS auditor) - IRS is not in the drug business.
 
Note - usually triggers multiple hearsay discussion
Note - may trigger Confrontational Clause - Crawford - if custodian of records (aka the accuser) is not
testifying
 
Past Recorded Recollection
A written record of an event, made shortly after an event has occurred will be admissible if the written record
was made by a witness who has first-hand knowledge at the time, while fresh in memory and accurately
reflects the record made, and now has impaired memory.
 
Elements
1. Impaired memory (California - all memory; Federal - some memory)
2. First-hand knowledge
3. Fresh in memory (California - at the time; Federal- anytime so long as fresh in memory when
noting)
4. Accurately reflects
 
Present Recollection Refreshed: Court permits any item to be shown to a witness to refresh his memory.
Such item will not be admitted into evidence though.
 
Prior Statement by Witness
 Federal - Non Hearsay exemption
 California - Hearsay but exception
 
Prior Inconsistent Statement

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 When a witness testifies, evidence of his prior inconsistent statement to his testimony maybe used to
impeach his creditability.
 Extrinsic evidence allowed (i.e. another witness) must be material to the testimony, if introduced
(more of an Evidence II issue)
 California - allows statement not only made under oath
 
Prior Consistent Statements
Once a witness has been impeached, a party may repair creditability by offering prior consistent
statement.
 
Prior Identification
A declarant’s statement identifying a person as someone he identified prior is admissible if the declarant
is testifying and subject to cross examination.
 
Misc. Hearsay Exceptions
 Ancient Document - document that is at least 20 years old (common law 30 years) and whose
authenticity is established.
 Learned Treatises - writing may be admitted (read to court) for the truth of the matter asserted where an
expert is on the stand (used to impeach)
 Market Reports/ Publication - records of market quotations are admissible (i.e. stock market, weather)
 Family History / Reputation- statements of character of a person concerning his associates or community
is admissible - declarant must be unavailable.
 Prior Convictions - judgment of felony convictions are admissible in both criminal and civil to prove any
fact essential to conviction.
 Religious Organization of Family History - records of birth, marriage, death, divorce contained in a
religious organization are admissible, declarant must be unavailable.
 Certificate of Marriage, Birth, Death - statement of fact in public record is admissible.
 
Confrontational Clause – Crawford
Even though a statement is admissible through a hearsay exception, the Confrontation Clause may keep the
statement out if offered by prosecution against criminal defendant. The out of court statement is excluded if:
 
1. Statement is testimonial - any statement made to law enforcement to further a police investigation or
knowing it would be used by prosecution.
 On-going emergencies (911 calls) are not testimonial
 Police lab reports are testimonial and need the custodian of records to testify (Melendez v. Diaz) -
basically you have to have the lab analysist to court so defense can cross exam.
 
Examples
o D calls 911 and talks to an operator while X is beating her up and tells the operator what X's
name is and what he is doing. X then leaves, but D still continues to talk to the operator. Even
though, the 911 operator would be law enforcement (testimonial), it is not testimonial because
it is not a past crime but an on -going crime. However, anything said after X left, would be
testimonial and thus inadmissible.
 
o Wife calls 911 and says, "Help! Help! Husband is going to kill me" He is about to kill me. When
cops come and write what she said down - that is testimonial.
2. The declarant does not testify at trial
3. The declarant is unavailable
4. Defendant had no opportunity to cross examine (former testimony exception)
 
“Exception to Confrontational Clause”: Dying declaration and Forfeiture
 
 
Daryoush Zolfaghari 2017
Unavailability of Declarant – DIFF (in criminal case- triggers Crawford)
1. Dying Declarant
2. Interest, Declarant against
3. Former Testimony
4. Forfeiture
 

Ways to Find Declarant Unavailable - PRIMA

1. Privilege: Declarant is exempted by ruling of the court on grounds of privilege.
 California - not considered unavailable
2. Refuse: Declarant refuses to testify despite an order by the court.
3. Illness: Declarant unable to testify because of death or illness.
4. Memory: Declarant unable due to lack of memory.
 Federal -memory loss on subject matter
 California -total memory loss required
5. Absent: Declarant absent and the proponent has been unable to procure his attendance by reasonable
means.
 Witness out of state: The state must show that the witness is beyond state's own process, and
show good faith effort to procure witness or show efforts would have been unlikely to succeed.

Daryoush Zolfaghari 2017