MY NOTES: Business Organizations | Constitutional Law I | Copyright Law | Evidence | Wills and Trusts | MN2L HOME

November Evidence Notes - © 1999 John Thompson

Santa Clara University, Prof. Uelman



November 2, 1999


Common law principles in regard to privilege in federal court; not codified


Calling witnesses in the courtroom

            A.. who can be called in the courtroom to testify?

                        1.. virtually anyone who meets basic criteria

                                    a.. observed something that is relevant

                        2.. personal knowledge

            B.. who can’t testify?

                        1.. those that come within some statutory disqualification:

a.. if he or she is incapable of expressing himself concerning the matter to be understood

i.. demonstrated by case where person could not communicate except by raising right knee to say yes

n      is this sufficient to be capable of expressing herself?

n      Court said NO; examination was too limited

ii.. most often this comes up in regard to children

b.. someone who is incapable of understanding the duty of the witness to tell the truth

                        2.. procedural protections for children

a.. have child testify by means of video relay so child will not need to be in the same room as the defendant

b.. CA procedure of having child behind screen would probably pass Constitutional muster

c.. another option is having an adult accompany the child to the witness stand (have to be careful that this adult does not influence the child’s answers)

                        3.. hypnotized witnesses

a.. the testimony of a witness who has undergone hypnosis is inadmissible as to all matters relating to those events, from the hypnotic session forward


Direct v. indirect examination

-         principle difference relates to leading the witness

-         a leading question suggests the answer to the witness

-         leading questions can only be asked on cross-examination

general requirement is that cross be limited to the scope of direct examination

court has general discretion to control the order of examination




November 9, 1999


Impeaching a witness


No problem with admission of prior offenses as propensity evidence.  Issue is what we tell jury as to how they should use the evidence (is it alone, enough to convict, or do we need something more?) (is this criminal cases only??)


§ 780 - gives areas for potential fruitful cross-examination

a.. demeanor while testifying and the manner in which he testifies.

-         this area does not need to many questions; can just point this out during closing arguments to the jury

b.. character of his testimony

-         may be apparent from the way the testimony is presented, and cross examination might not be needed

-         but CE can demonstrate the extent to which a witness was rehearsed; ask questions about how the witness was prepared and been prepared

c.. extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies

-         questions about prescriptions, medication the person is on, if they had anything to drink

-         should not just go fishing for this information; have something you are looking for

c.. extent of his opportunity to perceive any matter about which he testifies

-         all of the external conditions that affect opportunity to perceive; dark/light, rain/dry

d.. character for honesty or veracity or their opposites

-         three ways to prove character: reputation, opinion, specific acts

-         evidence with respect to specific acts that did not result in a conviction: § 787 excludes this evidence even though it may be relevant (civil cases); in a criminal case they are not excluded, unless excluded by § 352 (prejudicial out weighs probative value)

·        Federal Rule 608(b) - different approach; cannot present extrinsic evidence to prove specific evidence; can also CE witness about specific instances that relate to the character of the person of the good character the witness is extolling

·        In CA (§ 790) - don’t have to wait until an attack to bring up good character evidence in criminal cases (??? check)

e.. His character for honesty or veracity or their opposites.

-         CE as to specific instances, extrinsic evidence as to specific instances (only permitted in CA under Prop. 8 (prop 8 only applies to criminal cases), extrinsic evidence as to reputation or opinion

f.. The existence or nonexistence of a bias, interest, or other motive.

-         witness’s relationship to defendant; racial bias; religious bias (must be relevant)

-         all aspects can be inquired into; even if they are denied, we can offer extrinsic evidence

g..  A statement previously made by him that is consistent with his testimony at the hearing.

-         discussed in context of hearsay exceptions for prior consistencies and inconsistencies; can confront a witness with prior inconsistent statements; cannot bring out prior consistent statements unless credibility has been attacked

-         not only can we CE witness, we can prove them extrinsically

h.. A statement made by him that is inconsistent with any part of his testimony at the hearing.

-         discussed in context of hearsay exceptions for prior consistencies and inconsistencies; can confront a witness with prior inconsistent statements; cannot bring out prior consistent statements unless credibility has been attacked

-         not only can we CE witness, we can prove them extrinsically

i.. The existence or nonexistence of any fact testified to by him.

-         witnesses can testify against defendant as to facts

j.. His attitude toward the action in which he testifies or toward the giving of testimony.

-         a type of generalized bias

-         a bias that can be inferred from some general attitude or relationship

k.. His admission of untruthfulness.

-         get the witness to admit he was lying

-         very hard to do; don’t see this very often



Prior convictions under FEDERAL RULES

§ 609 - much easier for prosecution to get evidence of prior convictions admitted if the defendant takes the stand; because now the prior convictions can be used to attack credibility of the defendant as a witness;  as evidence of prior convictions only

-         so usually a defense attorney will not put defendant on the stand because the possibility of getting prior crimes admitted will probably hurt the defendant more than his testimony would help him


Prior convictions under CA RULES


-         prop 8 confuses things: 1) relevant evidence shall not be excluded in a criminal case; 2) prior felony convictions be used to impeach witnesses without limitation

§ 788 no longer applies in criminal cases in that it excludes relevant evidence

-         how about crimes where intent had nothing to do with it (negligence, strict liability)?  Is this relevant as to their character for truthfulness?

-         In criminal cases, the crime must at least involve moral turpitude.  People v. Castro.  Category of crimes that have been excluded are crimes that involve strict liability or negligence (such as involuntary manslaughter).  EXAM QUESTION


In CA - Castro said that Prop. 8 did not intended to kick § 352 out the window.  Court still has discretion to exclude prior convictions based on moral turpitude if the probative value is outweighed by prejudicial impact


CA code does not permit impeachment by misdemeanor; Does prop 8 open the door?  YES - Prop. 8 permits the impeachment of a witness’s credibility by showing that a witness has been convicted of  a misdemeanor, subject to 352 (probative value outweighed by prejudicial impact)


Problem is how do you prove a misdemeanor without violating the hearsay rule?  Showing a misdemeanor conviction is almost by definition hearsay. 

-         asking about a conviction is hearsay usually

-         but can still inquire into the facts that led up to the event (which will not be hearsay)


OJ questions - are we talking about this jury in this case, or are we talking about how this would affect a reasonable jury; evidence about N-word with a mostly black jury

-         can we have a rule that says to look at the particular jury to determine prejudicial impact??




The judge has general discretion under § 352 to waive probative value of evidence against prejudicial evidence; Under Section 352, the court has substantial discretion to exclude collateral evidence. 




November 11, 1999


CA still follows Fry test - expert testimony must be based on “generally accepted” scientific methods


Federal Rules don’t follow Fry test because “all relevant evidence will be admitted.”


Distinctions between kinds of opinions anyone can make, and opinions that require special training or expertise.


Expert opinion must be:

Related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact



Court in Fry said that scientific evidence would not be allowed until there is a general acceptance in the relevant scientific community of the reliability of the technique.

-         is this a test that excludes relevant evidence? Or is this essentially a question of relevance?

-         USSC in DAUBERT: point to Rule 402 (all relevant evidence is admissible unless specifically excluded by some other provisions); therefore the Fry test excludes relevant evidence and cannot stand because it excludes relevant evidence; the only basis to exclude scientific evidence now comes in Rule 702 (whether the theory is science - has it been tested in laboratory, peer review, rate of error in procedure)

-         General acceptance can not be only standard applied; “it is not a necessary precondition to the admissibility of scientific evidence”


CA standard - the Fry test has been adopted in the Kelly case (known in CA as the Kelly-Fry standard); a showing of general acceptance in the scientific community is still required before the evidence can be admitted.

-         can the Kelly-Fry standard still be excluded after proposition 8?

A: the CA SC held that judges can still exclude this evidence by applying § 352 regardless of Prop. 8

-         is a debate as to who should decide whether the expert testimony is relevant or not: should it be the judge or jury?

-         DAUBERT - made the standard more flexible, said the judge in each individual case can assess other factors as well to determine admissibility

-         HARRIS - the process of the judge applying the standard is really a question of relevance; clearly counter to what Court said in DAUBERT; HARRIS said that evidence must meet standard or else it is irrelevant

-         Who decides level of acceptance under DAUBERT?  The judge will decide; not being treated as a questions of conditional relevance

-         Who decides level of acceptance in CA (under Kelly-Fry) - is treated as a § 405 question


COMPARE: OJ Simpson trial

-         use of PCR technology for DNA testing was a brand new procedure at that time

-         had to use PCR (a more sophisticated technology because the standard way would not work since the blood samples were not very good)

-         issue was whether PCR should be admitted; the hearing would have taken 6 weeks (for the judge to have made a final decision)

-         the only reason for the hearing was to preserve it for appeal


Qualifying an expert - done by knowledge, skill, training, or education

-         do not have to have a special degree; can acquire the experience by on the job training

-         no problem with witness giving opinion on ultimate issue (FR 704, CA 805)

NOTE: there is a limitation on ultimate opinion in regard to mental state in FR




November 16, 1999


Will go through last year’s exam next time.  Also do bar exam questions on pages 270-71




Had it in civil procedure when we went over work product


Protect privacy of relationships, communications, even at the expense of excluding relevant evidence; every privilege excludes relevant evidence


Eliminated all privileges in federal rules; the committee recommended a lot of privileges, but were cut out by Congress.  Instead Congress just adopted one simple rule on page 65.


Defendant has privilege not to call as a witness and privilege not to testify. 


Marital privileges

-         not to testify against your spouse

-         privilege for confidential marital communications (communications between spouses; protects privacy of relationship itself; encourages spouses to freely communicate with each other)


Physician patient privilege - a communications privilege; want to maintain open flow of communication between doctor and patient

Attorney client privilege - designed to facilitate communication

Psychotherapist privilege - includes protect of communication between shrink and patient

Clergyman penitent privilege - somewhat unusual because both the clergyman and the

penitent are holders of the privilege (if one party waives it, the other party can still assert it


Sexual assault victims and counselors

Domestic violence victims and their counselors

Privilege for confidentiality of official information and identity of informer (like a government information privilege)

Privilege for official information - usually used to protect identity of an informer

Privilege for political votes - can’t be required to disclose how you voted in an election

Privilege to protect trade secrets - right of companies to protect secrets



Privilege for a newsman for contempt - does not have to disclose confidential sources;

society values ability of newsmen to dig out information by promising confidentiality to their sources

Privilege protecting information disclosed in the course of a mediation session


The above list is not exclusive, there might be more that is not recognized in the evidence code (such as work product privilege which is in Civil Procedure Code


What happens to attorney client privilege if same firm is doing accounting and legal work?


Last year, Congress enacted a accountant client privilege (1998).


New privileges on the horizon in CA:

Accountant client privilege

Parent child privileges


Personal representative of the client if the client is dead (for attorney client privilege) - this lasts only as long as the estate is open.  Attorney client privilege does not extend indefinitely under CA evidence code. 

-         with respect to each privilege you must carefully identify who the holder of the privilege is


The court determines if the privilege applies or not under Section 405


Don’t want jury to know a privilege is being asserted. 


Must be careful when meeting with physician, attorney, therapist, etc..  when other people, even friends, are present.  This might be construed as waiver of the privilege.


Presence of an unknown eavesdropper does not destroy the privilege. 


Can a person have multiple “hats” and be protected by privilege under all?  Such as a friend who is also you doctor?


Do privileges protect all conversations, or just those related to business (attorney client, doctor patient)? 

-         in order to assert privilege you have to show it was a communication that related to the covered privileges


Shouldn’t the judge be able to look at the supposed privileged information in order to see if it was worth litigating?


If by means of invocation of a privilege you are foreclosed from your right to cross examine a witness after the witness has testified on direct, you have a right to move to strike the direct testimony because you cannot cross examine.  Courts often say you waived privilege by testifying on direct. 




November 18, 1999


Video: Rosie Greer - Its alright to cry


Attorney client privilege -


Exception: crime or fraud - if someone confers with an attorney in order to get help to commit a crime or a fraud, attorney client privilege does not apply


Every state follows common law except CA - suggests privilege terminates when the estate is wound up; the attorney client privilege goes through wrap up of estate - most other states allow attorney client privilege to exist forever (permanent; rational is that it is important part of assurance that is given to clients so that they will be candid with their attorneys)


957 - no privilege where the communication relevant to an issue between parties of who claim through a deceased client


In re Navarro - privilege is to promote communication from the client to the lawyer;  does the privilege also protect information from lawyer to the client?


Video - attorney’s client told him where two bodies were hidden.  The attorney did not disclose it because of the attorney client privilege.  Parents were very upset.  Courts said that not telling anyone was the right thing for the attorney to do.


956.5 - no privilege if lawyer believes disclosure is necessary in order to prevent a criminal act that is likely to result in death or substantial bodily harm


no requirement to notify clients of these exceptions although it might be a good idea


if a client tells you he is about to do a bad thing, the obligation of the lawyer is to try to persuade them to do otherwise.  One of the reasons we want clients to speak freely with attorneys is so that attorney can try to talk client out of it. 


If a client brings a murder weapon into your office, you should not keep it, because you have an obligation to turn it over to the police.  Attorney cannot actively conceal weapons or other evidence related to the crime. 


Attorney client privilege in a corporate context

-         often employees of a corporation will talk to the lawyer in the corporation thinking that he is their lawyer

-         NOT the lawyer for each person in the corporation so the attorney client privilege does not work

UpJohn Case - USSC said the purpose of the privilege is to allow the lawyer to do a good job for the client.  For the corporate lawyers this means, that he needs to be able to gather information from people in the corporation without concern.  Application of the privilege turns on the purpose the information is communicated on.  If the information is communicated between a client (employee of firm) and attorney, AC privilege applies; look to the purpose for which the information is communicated

-         attorney client privilege only applies to those who are in control in the corporation - called the control group test;

-         Chadborn - leading corporate attorney client privilege case in CA; several factors: intent of the party making the statement, if person making communication should not be so privileged unless he is the natural person speaking for the corporation

-         CA has hybred situation - controlling standard is the intent of the person from whom the information emanates, but then also apply control group standard (his communication should not be so privileged unless, he is the natural person to be speaking for the corporation

-         CA summary - intent and control group approach


Exception: 958


Exception 962 - joint clients - joint representation results in a waiver of the attorney client privilege; if you represent both clients and one says something about the other client, you have to tell first client that you can’t keep information secret from the other client; neither can assert the privilege against the other in any dispute between the two




November 23, 1999


Exam: Thursday, Dec 9 1:15pm

3 hours, 25 multiple choice questions (50%), 1transcript (50%)

Open book - rules pamphlet

HOT LINE: Wed, Dec 8 10-4 554-5729


Testimony review - transcripts


Review of California Bar Exam


(numbers here are indications on exam)


  1. non-responsive; question should have been answered yes or no; also should ask to strike the response - not relevant that they have been selling cocaine together for years; prejudicial impact outweighs its probative value
  2. non-responsive (did not need to include all the other stuff); failure to authenticate the answering machine message
  3. not testifying what was the contents of the tape so probably not best evidence; hearsay objection would be overruled since it is a party omission; co-conspirator statements (admitting he was a co-conspirator); this would come into the co-conspirator exception; but must lay a foundation in order to get it in (statement was in furtherance of conspirator) so lack of foundation to get this in as a co-conspirator exception; is hearsay but comes within the co-conspirator exception; could probably argue that this is not even offered for a hearsay purpose - only purpose is to explain why he went to a particular place
  4. leading question, compound question; bias - this shows that witness is biased (at common law you could object that the prosecution is impeaching his own witness)
  5. bolstering witness with a prior consistent statement - cannot offer prior consistent statement until the witness has been challenged with a prior inconsistent statement; under CA law you can let this in because of Prop. 8
  6. impeaching with a prior felony conviction; this conviction would have to be a felony for this to be admissible; relevance - showing that he committed an assault is not relevant to show whether he is telling truth or not; prejudicial impact outweighs its probative value. 
  7. hearsay - out of court statement; but comes within exception for prior inconsistent statement; could point out that this really is not hearsay because it is not offered to prove truth of matter asserted


Review of California Bar Exam, July 1998, Question 3


13.    hearsay - prior testimony that is not in this court subject to cross examination at this time; consider the relevance; double hearsay - saying what Victor said, also trying to offer his prior testimony; when there is double hearsay you have to find an exception for each element;  statement of identification is exception with respect to Victor; with respect to Detective must try to use prior testimony exception - have to show unavailability (he is unavailable because he is dead); also must show that the party against whom it is offered has already cross examined the witness with the same motive and opportunity to attack the witness’s credibility (no problem here because there would have been an opportunity to cross examine Detective when this testimony was offered

14.    marital privileges - 1) not to be required to testify against your spouse (Bernice’s privilege) - this might not work because they are divorced, this privilege depends on the current circumstance in the marital relationship, existence of divorce obliterates the privilege; 2) confidential information during marriage - protects information during marriage, does not matter that they are divorced, both parties can assert this.  Even in Bernice waives this, Don can assert his.  This does not apply to the August first because they were not married.  But as to the October 1 objection, it would be sustained because they were married. 

15.    trying to offer good character of victim here - but can only offer this after bad character was offered in an attack; prosecution can only rebut an attack with good

17. 12 year old conviction - quite old; but court might let it in because it is a crime of dishonesty; look to see if prejudice outweighs the probative value; objection would probably be sustained; offered against defendant himself so there is a possibility of prejudice



Review of last year’s final exam


Line 2 - non responsive, should be answered with yes, no


Line 3 - 4 - double hearsay

1.. wife to dispatcher - comes within the hearsay exception (party admission); can also argue that it is not hearsay because it is not offered for a hearsay purpose (always consider whether it can be interpreted as for a non-hearsay purpose)

2.. dispatcher to emergency dispatcher - does not seem to be a hearsay exception here, just make sure you say, if this were being offered for a hearsay purpose, there is no exception that can be used; also can argue that this is not being offered for a hearsay purpose


Line 5 - might be able to object that it calls for narrative (not really looking for this



Line 8 - lack of personal knowledge; other parts might be able to get in because of

excited utterance; not sufficient foundation to show dying declaration;

-         can statement itself be used to show consciousness of dying?  Is this bootstrapping?  We are using this for a non-hearsay purpose, infer that anyone who would make this statement would think he is dying; s

-         stronger argument is the spontaneous statement exception

-         medical diagnosis exception might apply? In CA limited to child abuse; but under federal rules this would be a good argument

-         have a problem with personal knowledge - how can he know that Wilma poisoned him?


Line 10 - nonresponsive


Line 12 - hearsay?

-         not really offered for a hearsay purpose; this is offered to explain her response


Line 13 - hearsay

-         EXCEPTION - party omission; she is defendant that is on trial and an omission against her


Line 14 - opinion; is she competent to offer an opinion

-         on other hand this statement is only being offered to show her state of mind

-         most likely hearsay or opinion objection would be overruled


Line 17 - hearsay, but overruled because of party admission exception


Line 20 - hearsay NOT a party admission; not being offered against her; being offered by

her own lawyer on her own behalf.  Party admission only works if offered against party on their behalf. 

-         rule 356 if you elicit part of a statement on direct, then she is now entitled to offer the remainder of the statement in context; § 356

-         double hearsay (she said that he said) attendant is relating what wife said husband said - this might come into exception for statement of preexisting condition


Line 22 - lack of personal knowledge; reading about it in the papers is not good enough


Line 25 - relevance - overruled because you are trying to show bias

-         hearsay? Not being offered for hearsay purpose to prove the truth of what is asserted and would be relevant to show bias


Line 32 - beyond expertise - he is not expert on this;

-         also make a 352 - impact of this opinion outweighs its probative value


Line 33 - hearsay; but doctor can rely on this if it is the kind they would normally rely on


Line 35 - as to whether this was accidental goes beyond his expertise as a patholigist to determine cause of death; he does not know this


Line 40 - this is not type of evidence that would be ordinarily relied upon by a patholigist; so it is hearsay


Line 33 - objection, irrelevant; 721(c) allows it in - just have to establish that the author of the source or study is a reliable authority; here we have concession of expert that this person is a leading authority


Line 48 - relevancy; color is not related most likely


Line 52 - hearsay and best evidence problem - referring to what is on label without account where package is


Line 55 - relevance; probably overruled goes to show bias


Line 59 - relevance as to cause of first husband’s death, and 352 prejudicial outweighs probabtive value


Line 60-68 - relevance and 352 objections


Line 77 - relevance and 352 objection


Line 83 - relevance, 352; collateral impeachment; probably be overruled because it would be relevant to show motive; also might be a marital privilege problem; when they were currently married; there is an exception even to the marital privilege not to testify if what you are testifying about ….  Look at the section! Privilege not to testify against evidence.





Don’t have to say which rule we are relying on, but it is helpful if we do

No medical diagnosis exception in CA


Objections as to form are not that big of a deal on the exam. 




Don’t hesitate to make tactical points - like this is an objection, but one that the defense would probably not want to make



prior testimony exception to hearsay - must show unavailability and same motive and opportunity to cross examine





bootstrapping - coconspirator whose statement you are offering is not available, and are relying on the statement itself to show the person was a member of the conspiracy