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September Evidence Notes


September 2, 1999


§1520-1523 - these are the Best Evidence Rule code sections


Best Evidence Rule

-         This rule only applies when we are trying to prove the contents of a writing.

-         Must have the original of the writing (including tape recordings, and everything else that is listed in Evidence Code)


Forms that can be used to prove contents of a Writing

1)      Original (§255)

2)      duplicate

3)      copy that is not a duplicate

4)      oral description


Secondary Evidence Code

-         content of a writing may be proved by other secondary evidence


§1522 -


Compliance with Best Evidence Rule is a §405 issue - meaning judge will decide issue with finality before the evidence is admitted


If best evidence rule objection is sustained, there is the possibility that relevant evidence will be kept out.  This may be a violation of Prop. 8. ("relevant evidence shall not be precluded in any Criminal proceeding"); does this mean the secondary evidence rule does not apple?

-         depends on whether §1520, 1521, 1523 were enacted by a two thirds vote

-         this is the text or Prop 8: "Except as provided by statute hereafter enacted by a two thirds vote…"


For a good example of how the best evidence rule: watch the movie The Verdict

-         a copy cannot be admitted when you have the original in evidence

-         in this case, the copy was being offered to prove that the original was being altered

-         the rulings of the judge in the movie were erroneous

-         the testimony should have at least been admissible; it was testimony given to prove the contents of the document

-         also the copy should have been admissible as proof the original was altered





Today is 9/9/99


Character evidence


Excluded because evidence is almost too relevant; making a leap from bad person to bad act might mislead the jury (bad persons do bad things) and will cause jury to not really consider whether the act was really proved


Balance that happens when 352 or 403 gets applied; prejudicial impact of the evidence may outweigh its probative value


Relevant evidence shall not be excluded in a criminal case – prop. 8

-         this may make a different rule for civil cases than criminal cases

-         in criminal case the test is “is it relevant”

-         prop 8 specifically saved section 1103; wanted to preserve the “rape shield law” – this protects rape victims from being put on trial with respect to their character

-         1101 is also exempt


352 and 403 still useful for trying to keep evidence out


Three basic forms that character evidence might take: (see Mendez page 40)

1)      proof of character in a specific instance (not admissible in civil cases; syas that on prior occasion D behaved like ___ so here it is likely that he did this…)

2)      prove character by reputation (generally not admissible, can’t prove person did this thing because he has a bad reputation; if you try to attack person’s veracity as a witness that is probably admissible; evidence of bad reputation can be offered to show person’s credibility as a witness; limited to reputation for honesty or veracity as an attack on reputation as a witness)

3)      opinion evidence – relevant but not admissible (admissible only if it goes to attack credibility as a witness)


Answers to Menedez questions on reserve in library


Character evidence can arise in four different contexts:


1.      Character is directly at issue (§1100)

  1. Evidence of reputation or opinion
  2. evidence of specific acts
  3. types of cases this arises in:

i.                     defamation cases

1)      comes up in two ways: proving what you said was true

2)      plaintiff offering evidence of his good reputation to show his damages; to show how much these false statements affected his character

ii.                   child custody cases – litigating what is best interest of child; need to know character of parents

2.      Seeking to prove something other than general character

  1. preparation, intent, negate accident or mistake, knowledge, opportunity, identity, motive or plan (PINKO IMP)
  2. only evidence of specific instances will be admissible

3.      Character evidence offered to show credibility of witness; these traits are:

  1. honesty
  2. veracity

4.      character evidence is allowed to be admitted for purposes of showing propensity

  1. used to show D is more likely to have behaved such as this because of his character
  2. civil cases:


  1. to show conduct of propensity of defendant in Criminal cases
  2. to show conduct or propensity of non-rape victims
  3. to show conduct or propensity of rape victims


Lesenda case – last person in CA that was legally hung; San Quinten, 1944; issue about admissibility of defendant’s confession; tried to kill his wife by getting a rattlesnake to bite her foot.  The bite did not kill her so he finished the job by drowning her in the bathtub.  Evidence was tried to be admitted that showed a prior wife had drowned in the bathtub. 

-         could past evidence be used to show that he had killed his wife before in order to collect insurance?

-         Court said it was admissible in order to show scheme or plan because of the striking similarity between prior act and this act


People v. Edwolt, 7 Cal.4th 380 (1994)

-         evidence was offered to show common scheme or plan

-         when doing this it is offered to show he did the act, not that he intended the act

-         if evidence was offered simply to show intent, would court have had to keep it out under §352? No

-         §352 can be used to avoid prejudice problem

-         court notes an escalating requirement of similarity between this crime and past crimes:

SIGNIFICANT: because this case held that common scheme or plan evidence could be admitted although many prior cases held that it could not be admitted

HOLD: §1101 applies; rejects argument that 1101 is out the door because of Prop. 8.

1101 allows evidence of specific instances; does not allow evidence of reputation

-         this case broadens the exception; don’t need to show a common scheme or plan in order to show similarities

court makes it clear that §352 is still in picture; how probative is this evidence to prove v risk that the evidence will be misused by the jury in this particular case


- - - - - - - - - - - - -  -


September 14, 1999


Character evidence continued


Good people do good things.


Can try to prove the opposite (of bad), that the person is good and has a propensity to do good.  Should this be treated differently than bad character?



1102 - allows character evidence to be offered by the defendant to prove his conduct in conformity with such character or trait of character.

Specific evidence is not admissable; can have only opinion or reputation evidence


1102(b) - prosecution can offer evidence to rebut evidence that defendant introduces (only after defendant starts the character evidence); also the character witnesses that the defendant calls can be cross-examined (Michalsen case)


option of offering good character evidence should be very carefully exercised; it invites bad character evidence by prosectution;


IN CA appropriate to object if a character witness is asked "Did you know...?"  Should ask "Have you heard?"


Risk in evidence of bad character: jury will draw the inference that this is a bad person and is more likely to have done this bad act;


Propensity evidence - evidence that makes it more likely that defendant acted as he did since he has acted like that in prior occasions.  There is no risk of prejudice to the victim in this type of evidence.


1103.  (a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

   (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

   (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

- can have all three types of character evidence

- prosecution can rebut this evidence; only if D offers bad character evidence of victim

- under Federal rule is that even if D says "V hit me first" this will open door to character evidence

- another difference under Federal Rule (405) is that only reputation or opinion evidence is allowed.  Specific incident is only allowed on cross-x under Michalson case


1103   (b) In a criminal action, evidence of the defendant's character

for violence or trait of character for violence (in the form of an

opinion, evidence of reputation, or evidence of specific instances of

conduct) is not made inadmissible by Section 1101 if the evidence is

offered by the prosecution to prove conduct of the defendant in

conformity with the character or trait of character and is offered

after evidence that the victim had a character for violence or a

trait of character tending to show violence has been adduced by the

defendant under paragraph (1) of subdivision (a).

- creates another risk for the defendant: by attacking the victim's character, you also open the door to evidence of your own bad character

- only for character trait of propensity for violence

- unique to CA; Federal Rule does notopen door to bad character evidence of D simply by offering bad character evidence of the victim

- only bad character with respect to the trait of violience


Prop 8 INfluence on this:

- prop 8 says no relevant evidence shall be excluded

- rule 1103 is exempted from prop. 8

- they were trying to save the rape shield section of 1103, but clearly the evidence applies to the entire section


Circumstances surrounding sex crimes:

- most states have a rape shield law; federal has one as well; in CA it is 1103(c):


1103 (c) (1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. [EVIDENCE CANNOT BE OFFERED TO PROVE CONSENT]

   (2) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.

   (3) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness'sexual conduct, the defendant may cross-examine the witness who givesthe testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness.

   (4) Nothing in this subdivision shall be construed to make

inadmissible any evidence offered to attack the credibility of the

complaining witness as provided in Section 782.

   (5) As used in this section, "complaining witness" means the

alleged victim of the crime charged, the prosecution of which is

subject to this subdivision.


Rule 412 is the Federal Rule; pretty much the same with one subtle difference:

"specific instances of sexual behavior may not be used to prove consent" CA has "sexual conduct"

- is this a big difference??

- sexual behavior connotes all activities which encompass sexual conduct; in addition, the word behavior should be construed activities of the mind such as fantasies or dreams


Recently enacted expansion of sex laws permitting use of propensity evidence of prior sexual offenses: Section 1108


1108.  (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [OPENS DOOR TO PRIOR SEXUAL OFFENSES, SPECIFIC INCIDENTS OF CONDUCT, AS PROPENSITY EVIDENCE]



Rule 413 - if D charged with sexual assault then evidence of prior sexual assault is admissible

Rule 414 - if D charged with prior child molest, then prior child molest is admissible

so under Federal Rules, you can't use prior child molest to prove sexual assault and the other way around

HOwever, in CA they are all lumped together as sexual crimes and child molest history can be used to prove sexual assault.


FR 413 - (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.


Prosecution v. Dave

- Dave charged wtih rape

- Dave and a woman met at party, she drove Dave home; declined to go into apartment with him; he took keys from her car; she had to follow him into his apartment to get her keys

- D says she consented

Prosecution wants to:

1. prosecution wants to call another woman that will say that the exact same thing happened to her two years ago(prior incident)

2. prosecution also wants to call another witness that says that Dave, while babysitting an six year old girl he molested her eight years ago


1. Bringing in number one: is this a common scheme or plan?  Probably admissible under 1108.

2. Bring in number two: probably admissible under 1108.  Might be a stronger 352 objection; it has less probative value than a prior rape, and potential for prejudice is greater.

- under Federal Rules, the prior child molest is inadmissible because what is being discussed is a rape, not a child molest.


different scenario:

1. Girl said to another girl before leaving party "I would really like to get it on with Dave"

2. on prior occasions the girl had picked up boys at parties and slept with them

3. 5 years ago she falsly accused a man of rape; and that the charges were dimissed when she admitted she had made it up and the story was not true.


Are the above statements admissible? ANSWER:

Statement 1: CA rape shield law does not keep it out (not evidence of prior sexual conduct to prove consent); but is this a specific incident of sexual behavior?  Under FR this says "sexual behavior" includes fantasies; under FR, then this statement should be excluded as evidence of sexual behavior; in CA it is admissible because it is not sexual conduct.  Also need to consider if this was sexual behavior with D.  If so, then not exempted.


Statement 2: FR and CA code is designed to keep this statement out.  Rape shield law. 


Statement 3: is this prior sexual conduct or behavior?  False accusation and behavior are not the same.  This is not character evidence with respect to rape.  THis is character evidence with respect to honesty.  Several CA decisions say that evidence of the victim's prior false accusations is not excluded by section 1103.  This evidence is ADMISSIBLE to attack her credibility. 


There are arguments in favor of capital punishment;


   (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance or any testimony that is expected to be offered, at least 30 days before  the scheduled date of trial or at such later time as the court may allow for good cause.

   (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code.

   (d) As used in this section, the following definitions shall apply:

   (1) "Sexual offense" means a crime under the law of a state or of the United States that involved any of the following:

   (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.

   (B) Contact, without consent, between any part of the defendant's

body or an object and the genitals or anus of another person.

   (C) Contact, without consent, between the genitals or anus of the

defendant and any part of another person's body.

   (D) Deriving sexual pleasure or gratification from the infliction

of death, bodily injury, or physical pain on another person.

   (E) An attempt or conspiracy to engage in conduct described in

this paragraph.

   (2) "Consent" shall have the same meaning as provided in Section

261.6 of the Penal Code, except that it does not include consent

which is legally ineffective because of the age, mental disorder, or

developmental or physical disability of the victim.


---- - - - - - - - -- - - -- - -


September 16, 1999


People v. Falsetta - court is interpreting constitutionality of section 1108

What Constitutional issues are presented?

- equal protection - by treating sex offenders differently than treating other defendants

- violation of due process

+ doubtful that this supreme court will find it unconstitutional



OJ evidence exercise


before you can consider former domestic violence, you must find that the murder on June 12 was domestic violence?


should the judge just decide that this was a domestic violence case and tell the jury that the prior incidents should be considered?


This is a 405 issue.  Judge should decide whether or not 1109 applies or not.


Relevance of prior incidents:

- provide a motive (jealousy)

- common scheme or plan (all acts show OJ exercising control over Nicole)


Mark Furman incidents - this turned the arguments around.  D did not want to let in character evidence on OJ, but did want it let in on Fuhrman


- - - - - -  -  - - -- - - -- - - -


September 21, 1999


Habit v. character traits


If evidence that would be inadmissible as character evidence can be offered as evidence of habit or custom, it will be admissible.

HABIT – a regular response to a repeated specific situation


Under federal rule, routine practice of an organization is also admissible


CA rule – evidence of habit or custom is admissible

-         this is the same as the federal rule, which admits evidence of a routine practice



defendant is an alcoholic – is this character evidence?  Hard to tell.


NEW TOPIC: evidence excluded in order to further some extrinsic policy

-         rape shield laws

-         exclusionary rules (keeping out evidence improperly seized, coerced admissions, etc)

-         remember, in a criminal case, proposition 8 may override a rule that keeps out relevant evidence


§ 1153 (rule § 410 in Federal Rules) – evidence of an offer for civil resolution of a criminal matter pursuant to the provisions of Section 33 of the Code of Civil Procedure, or admissions made in the course of a negotiation for the offer shall NOT be admissible in any action.

-         the purpose of this is to encourage plea bargains

-         how does Prop 8 affect this?  Still admissible despite Prop 8


§ 151 (rule § __ in Federal Rules) – evidence of subsequent remedial conduct in inadmissible to prove negligence or culpable conduct

-         promotes policy of wanting people to clean up messes that cause accidents, prevent defect that causes accidents, etc; don’t wan their actions to be used as evidence of their guilt


§ 1155 – evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.

-         want to encourage people to get insurance; don’t want the fact that people have insurance to be used against them

-         Federal rule 411 includes of evidence that person was and was not insured is not admissible

-         However under CA rule, it says only evidence that person was insured is inadmissible; does this mean we can offer evidence to show person was negligence because he did NOT have insurance? Is this relevant?


§ 1150 –



September 23, 1999


Basic analysis is whether evidence goes to prove anything or not.

All relevant evidence is admissible unless some specific rule keeps it out.


In criminal cases there is the constitutional admission that requires admission of relevant evidence.


In criminal case in CA watch out for…  CHECK TAPE


Conditional relevance:  prerequisite of authentication; must first establish that the evidence is what we say it is

-         burden is to simply present enough evidence for the fact finder to conclude that the preliminary fact is true (section 403 CA evidence code)


Other preliminary factual issues created by evidence code itself:

Best Evidence Rule: before you can provide a copy, must be able to account for the original

-         § 405 makes the determination whether the evidence is admissible or not; if judge admits the jury must consider the evidence

Procedure under FED rules (104a 104b) set up same dicotemy in terms of conditional relevance as CA




CA rule

Federal rules

Admission of evidence

Only admissible evidence can be considered by the judge in determining preliminary fact

Judge may consider any evidence in resolving factual evidence

showing propensity in criminal cases


Must ask question in Michalsen manner “have you heard” did you know”

Way you ask the question  does not matter

Character evidence

Other than a rape victim, you can put character at issue with propensity evidence under either guise of reputation and opinion or specific acts; prosecution can then rebut this evidence with evidence of good character

Only permit use of reputation or opinion evidence to attack character of a non-rape crime victim

Rape shield law

Sexual conduct – narrower than behavior

Sexual behavior – this is probably broader than CA rule of conduct

Evidence in sexual offense

§ 1108 – in any sexual offense, virtually any prior sexual offense will be admissible

Distinguish between sexual assault and child molest: in sexual assault prior sexual assault  IS admissible, but not prior child molest; under child molest rule, makes prior child molest admissible, but not sexual assault

Subsequent remedial measures

Subsequent remedial measures are admissible when theory of lawsuit is strict liability

Evidence of subsequent remedial measures is excluded regardless of theory of liability (courts divided on question of whether federal courts will follow CA rule under Erie)






Rules are a prefabricated process to ensure consistency.  DO no abrogate 352 or 403; can still argue exclusion under 352 or 403



Biggest differences between Fed and CA: in the area of showing propensity in criminal cases



A witness who is put on the stand to prove character, can be cross-examined as to specific acts; where a reputation has testified as to general reputation, he can be asked “have you heard about that incident where …” (Michalsen) A witness who is put on the stand to prove character, can be cross-examined as to specific acts; where a reputation has testified as to general reputation, he can be asked “have you heard about that incident where …” (Michalsen)


Federal rule abandons any rule as to form of question


Under both cannot act general questions about rape victim to suggest there was consent of the victim; both would permit behavior with defendant can…


General rule of admissibility of prior crimes to show propensity: all prior offenses are admissible and are admissible for purposes of showing propensity



General rules of exception PINKO IMP


Domestic violence – involves a spouse or a domestic partner, above age of 18.


-         - - - - - - -

sample questions page 122 of copied materials:


deal with a child abuse case and witnesses testifying about how good of a mother the mother is.  This is a criminal prosecution of mother for child abuse.

1..    fitness as a mother, please tell us what her reputation is. objection

A – sustained; regardless of federal rules or CA rules.  Only relevance this has is propensity.  Prosecution can not offer evidence of bad character.


2. do you have an opinion of her capability as a mother

A – sustained regardless of CA or federal


3. please describe what you saw. Objection.

B – admissible to show intent; admissible under PINKO IMP exceptions; same in CA and Fed Rules


4. mother calls her friend to testify about whether she is aquainted with mother’s fitness as a mother

B – defendant has option of putting her character in issue; overruled; same under CA or Fed Rules


5. are you acquainted with her reputation in use of violence

B – overruled; defendant can bring in evidence of her good acts


6. are you acquainted with mother’s reputation for truthfulness?

Can’t offer good evidence to bolster credibility as a witness until your credibility is challenged; if this evidence were offered as a to show that her truthfulness is relevant to the child abuse allegations, then it would be admissible and the objection would be overruled.  She is permitted to offer evidence at issue.  She can offer evidence of good evidence with respect to character traits which are relevant. 


assuming that friend were allowed to testify that mother had a good reputation, assume prosecutor asks the following questions on cross-examination (michalsen rules)


7..  have you heard that …

B – overruled .  the form of the questions is good.  Same in CA and Fed.


8.. did you know that….

D - Form of question is inadmissible in CA so sustained in CA, overruled in Fed rules.  In CA must be in form of “have you heard . .. .”


9.. Have you heard that mother assaulted a police officer two years ago?

Seems to not be relevant to her fitness as a mother.  This question was thrown out because everyone who took the test answered B.  A was also correct. 



B – objection overruled.  Once good evidence is offered, prosecution can rebut it with bad evidence

11. are you acquainted with friend’s reputation in community for truthfulness?

-         this is asking about the witness, not the mother

-         can the prosecution attack the character of one of the defendant’s witness?

B. objection overruled; you can offer bad character evidence of a witness limited to character for truthfulness


12..  Are you acquainted with mother’s reputation regarding her fitness as a mother?

-         this is propensity evidence

-         to show conduct or propensity in a civil case, character evidence is not admissible

-         in this case character is directly at issue

B. overruled


13.  do you have an opinion concerning

B. overruled; character is directly at issue


14.  have you ever observer mother beating her son?

B. reputation, specific instance, opinion all admissible when character is at issue



A – sustained; character is not directly at issue here


16. opinion of mother’s truthfulness?  Please tell your opinion.

A – sustained


17.. does mother go to church every Sunday?

-         § 789 evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness

A – sustained


18.  Tell about mother’s use of force and violence

A – objection sustained because it is a civil case where character evidence cannot be used to show a propensity or lack of propensity


19.. tell about reputation for truthfulness

B – objection overruled; goes to credibility as a witness


20.. opinion concerning mother’s propensity for use of force and violence

A – objection sustained since this is a civil case


21.. opinion of mother’s truthfulness

B – objection overruled


22.. observations of mother beating son

B – overruled because PINKO IMP; being offered to show absence of mistake or accident, to show intent; admissible under 1101(b);


23..  letter in mail – CA court

Section 641 of CA evidence code

  1. a conclusive presumption
  2. use of the presumption as evidence; burden of proof is on mother
  3. disappearing presumption (not mentioned to jury)
  4. burden of proof shifted – burden of proof on insurer

C is the correct answer.  The presumption disappears – a bursting bubble effect

C is the answer in federal court as well


24.  suit brought in federal court based on diversity       

C is correct as well.  It still disappears. Presumption disappears; jury decides, without regard to the shift of the burden.  Federal rules treat all presumptions as shifting the burden of producing evidence


25.  suit brought in federal court based on diversity

C is still correct


26.    Judicial notice – something that everyone knows as true the judge then must take judicial notice; length of a football field is common knowledge within this jurisdiction.  So judge must take notice.  NOT ON OUR TEST



September 28, 1999


Hearsay – evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.


  1. statement (intended assertion)
  2. out of court
  3. offered to prove the truth


Why do we exclude hearsay?

-         because the other side would not have a chance for cross examination

-         cannot explore ambiguity of the statement



What makes a statement hearsay?


Statement (§ 225) – means oral or written verbal expression or non verbal conduct of a person intended by him as a substitute for oral or written verbal expression.


Statements can be intended to make an assertion and not offered to prove the truth


At common law, even an implied assertion was treated as hearsay. 


Need to have it be intended to be an assertion – the statement

Hearsay triangle:


Offering a statement to prove the truth of the statement;  in order to satisfy the statement is true, must satisfy that the speaker believed in the truth of what he said


Sincerity, ambiguity


Purpose to hearsay rule is to preserve the opportunity to cross examine the person who made the statement when sincerity, ambiguity, perception and memory are at issue.  When you are only trying to prove the statement was made, it is not hearsay.


If out of court statement is offered to prove the truth of the assertion then it is hearsay.


Seems like hearsay keeps out relevant evidence.  How does this work with Prop. 8?  Prop 8 specifically says “nothing in the section shall affect any existing statutory rule of evidence relating to privilege or hearsay.

-         there might be some problems with new rules that developed after the passage of Prop. 8. 

-         Generally though, all the hearsay rules were preserved


Also have problems with § 352

-         need to consider relevance of statements; and that it won’t cause undue prejudice


Three most common examples of statements not offered to prove the truth:

  1. where statement has some independent legal effect (made an offer and other person said “I accept.” Statement is an operative fact.
  2. Statement is offered to show the effect on the listener
  3. statement is offered to show knowledge or state of mind of the speaker (show that the speaker knew ____ )



Page 153 Hypothetical


    1. double hearsay; out of court statement offered to prove truth of what is asserted
    2. hearsay; this case is offered to prove truth of what is asserted “I killed the victim”
    3. not hearsay; she is in court making statement
    4. hearsay
    5. hearsay; even though the witness is testifying to his own out of court statement
    6. not hearsay – not offered to prove the truth of the statement
    7. not hearsay – not offered to prove the truth of the statement; merely offered to prove that the person was alive
    8. not hearsay - offered to prove what effect the statement had on the listener
    9. not hearsay because it is offered to show effect on listener; not to prove truth of what is asserted
    10. not hearsay because it is offered to show effect on listener; not to prove truth of what is asserted
    11. not hearsay; just offered to prove that it was likely that defendant had notice and knew that he was and unfit driver
    12. not hearsay - just trying to prove that the letter exists; goes to show defendant’s knowledge or ability to acquire the knowledge
    13. not hearsay
    14. hearsay



September 30, 1999


Hearsay is not admissible, but there are lots of exceptions




Federal Rule

California Rule

Party Admissions



Adoptive Admissions



Authorized Admissions



Agent Admissions



Coconspirator Statements




Semantic difference between Fed. Rules and CA rules

Under section 801 there are eight different exceptions to the hearsay (said they are not hearsay); under CA evidence code they are hearsay.  Approach taken under Fed Rules and CA rules is a bit different


804 – last resort exceptions


Admission exceptions – must be relevant; relevancy can be: is admitting crime; lying about committing crime

1.. party admissions – no need to keep statement out when the person against whom we are offering the statement is the person who made the statement; only admissible if offered against the declarant

-         how do guilty pleas affect current charges? A prior guilty plea is an admission that can be used in other cases

-         at common law there was a device to avoid this; wanted to dispose of criminal cases without concern of later civil litigation: called plea of no lo contenderate – admitting crime only for purposes of criminal proceeding; the nolo is not admissible against defendant in subsequent civil trial

-         in Federal Rules there still is a nolo plea

-         CA the nolo plea has been abolished in felony cases, but still available in misdemeanor cases

2.. adoptive admissions – evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or conduct manifested his adoption or his belief in its truth

-         this is most common where the defendant is silent on an issue where a person would ordinarily be compelled to offer some sort of response

-         where defendant is confronted but does not deny the crime; this is admissible


3.. Authorized admission – when someone is authorized to speak on behalf of another, the representations that are made on behalf of the other person (possibly a client) are

admissible.  Other relationships where authority is explicitly given in order to conduct affairs or business transactions: sales representatives;


4.. Agent admissions – apparent authority; authority based on, implied from, a position that a party occupies


Pinkerton rule – when you join a conspiracy, every other conspirator becomes your agent;  when you join a conspiracy all crimes of other agents are chargeable to you


5.. coconspirator statement – any statements made by coconspirators are also admissible against you; this is analogous to the Pinkerton Rule (above) ; this exception applies even if a conspiracy is not charged


Borchelli case in supplement:

federal rules set up distinctions between 403 and 405 questions; when courts are deciding 104(a) questions there is no problems with bootstrapping the foundational facts on the statement

-         this is a 104(a) question to be decided by the judge