149623726 a Summary of the Rules of Evidence

8/13/2019 149623726 a Summary of the Rules of Evidence

1/27

A SUMMARY OF THE RULES OF EVIDENCE:

THE ESSENTIAL TOOLS FOR SURVIVAL IN THE COURTROOM

By Vincent DiCarloTABLE OF CONTENTS

I. Introduction

II. The Four Types of Evidence

III. General Rules of Admissibility

IV. Real Evidence

V. Demonstrative Evidence

VI. Documentary Evidence

VII. Testimonial Evidence

VIII. Form of Examination

I. The !ay "pinion Rule

. Accreditin# and Discreditin# a $itness

I. %haracter Evidence

II. The Rule A#ainst &earsay

III. 'rivile#es

IV. 'resumptions

V. (udicial )otice and "ther *ubstitutes for Evidence

VI. +a,in# and "pposin# "b-ections

VII. +iscellaneous "ther Rules

VIII. %onclusion

I. INTRODUCTION.
http://www.dicarlolaw.com/CoHist.htm#Resume%20of%20Vincent%20DiCarlohttp://www.dicarlolaw.com/CoHist.htm#Resume%20of%20Vincent%20DiCarlo


2/27

$e can only cover the %alifornia and federal la of evidence in the short time that e

have by a ruthless process of selection and compression. $hat e ill cover can best be

thou#ht of as that essential ,ernel of the la of evidence that the trial layer must carryin his head.

"ur tas, ould be impossible but for to important facts. First/ all of you have studied

the la of evidence before/ either in a course on evidence or in preparation for the bar

exam. Accordin#ly/ most of the rules presented ill already be familiar to you. $hat eill do here is to try to revie/ or#ani0e/ and reinforce that la so that you can apply it

ith confidence hen you need it.

*econd/ most of the rules of evidence need not be covered here because they are either so

obvious that you already ,no all you need to ,no about them or they apply only inlimited circumstances. For example/ e ould surely be astin# our time if e indul#ed

in an extended discussion of the rule that evidence should be construed to achieve the

ends of -ustice/ and others li,e it. This and many other rules only state the obvious andill not be covered here. Rules that apply only in limited circumstances include ones li,e

those relatin# to the scope of cross examination of a plaintiff in a case of sexual assault/ a

-uror1s incompetence to impeach his on verdict/ and the proof of valuation of property.Evid. %ode 22 345/ 5567/ 457 et se8.9 Fed. Rules Evid. :5;/


3/27

The basic prere8uisites of admissibility are relevance/ materiality/ and competence. In

#eneral/ if evidence is shon to be relevant/ material/ and competent/ and is not barred by

an exclusionary rule/ it is admissible. Evid. %ode 2 ?659 Fed. Rules Evid. :7;.

Evidence is relevanthen it has any tendency in reason to ma,e the fact that it is offeredto prove or disprove either more or less probable. Evid. %ode 2 ;579 Fed. Rules Evid.

:75. To be relevant/ a particular item of evidence need not ma,e the fact for hich it is

offered certain/ or even more probable than not. All that is re8uired is that it have sometendency to increase the li,elihood of the fact for hich it is offered. Weighingthe

evidence is for the finder of fact/ and althou#h a particular piece of evidence/ standin# by

itself/ may be ea,/ it ill be admitted unless it is otherise incompetent or it runs afoul

of an exclusionary rule. For example/ if the fact to be proved is that the defendant bit offthe plaintiff1s nose in a fi#ht/ testimony by an eyeitness to the act ould clearly be

relevant/ but so ould testimony by a itness ho heard the plaintiff and the defendant

exchan#e an#ry ords on the day before the fi#ht/ or even testimony by a itness hosold the defendant a disinfectant mouthash shortly afterards.

Evidence is material if it is offered to prove a fact that is at issue in the case. For

example/ if I offer the testimony of an eyeitness to prove that it as rainin# on the dayof the si#nin# of a contract/ that evidence may be relevant to prove the fact for hich it isoffered/ yet the fact that it as or as not rainin# may be immaterial to any of the issues

in the case/ hich may turn entirely on hether one or both parties breached the contract.

The issues in the case are determined by the pleadin#s/ any formal stipulations oradmissions/ and the applicable la. For example/ if/ in a case of breach of contract/ the

defendant has conceded that the plaintiff performed all his covenants/ proof of that

performance ould no lon#er be material unless it ere relevant to some other issue.

@nder both the %alifornia and federal rules/ the concept of materiality is included in theconcept of relevance. Evid. %ode 2 ;579 Fed. Rules Evid. :57.

Evidence is competentif the proof that is bein# offered meets certain traditional

re8uirements of reliability. The preliminary shoin# that the evidence meets those tests/

and any other prere8uisites of admissibility/ is called the foundational evidence. Evid.%ode 2 :7;/ :7?. $hen an ob-ection is made that an anser to a 8uestion/ a document/ or

a thin# lac,s a proper foundation/ hat the ob-ector is really sayin# is that a shoin# of

competence/ or of another prere8uisite of admissibility/ has not yet been made. Themodern trend in the la is to diminish the importance of the rules of competence by

turnin# them into considerations of ei#ht. See, e.g./ Evid. %ode 2 3779 Fed. Rules Evid.


4/27

&oever/ here the value of evidence for its proper purpose is sli#ht and the li,elihood

that it ill be used for an improper purpose by a finder of fact is #reat/ a court may/ in its

discretion/ exclude the evidence even thou#h it ould otherise be admissible. Evid.%ode 2 ?6;9 Fed. Rules Evid. :7?. In this situation/ the probative value of the evidence is

said to be outei#hed by its pre-udicial effect.

're-udice means improperharm. The fact that evidence may be extremely harmful to one

party1s case does not necessarily ma,e it pre-udicial. %ourts also have discretion toexclude otherise admissible evidence to prevent confusion/ delay/ aste of time/ or the

needless presentation of cumulative evidence. Evid. %ode 2 ?6;9 Fed. Rules Evid. :7?.

IV. REAL EVIDENCE.

Real evidence is a thin# the existence or characteristics of hich are relevant and

material. It is usually a thin# that as directly involved in some event in the case. Theritten contract upon hich an action is based is real evidence both to prove its terms and

that it as executed by the defendant. If it is ritten in a falterin# and unsteady hand/ it

may also be relevant to sho that the riter as under duress at the time of its execution.

The bloody bloomers/ the murder eapon/ a crumpled automobile/ the scene of anaccidentCCall may be real evidence.

To be admissible/ real evidence/ li,e all evidence/ must be relevant/ material/ and

competent. Establishin# these basic prere8uisites/ and any other special ones that mayapply/ is called layin# a foundation. The relevance and materiality of real evidence are

usually obvious. Its competence is established by shoin# that it really is hat it is

supposed to be. 'rovin# that real or other evidence is hat it purports to be is calledauthentication. Evid. %ode 2 5:779 Fed. Rules Evid. 75.

Real evidence may be authenticated in three aysCCby identification of a uni8ue ob-ect/

by identification of an ob-ect that has been madeuni8ue/ and by establishin# a chain ofcustody. =ou only have to be able to use one of these ays/ thou#h it is prudent toprepare to use an alternate method in case the court is not satisfied ith the one you have

chosen.

The easiest and usually the least troublesome ay to authenticate real evidence is by the

testimony of a itness ho can identify a uni8ue ob-ect in court. For example/ the curatorof a museum may be able to testify that he is familiar ith/ say/ 'icasso1s Dames de

Avi#non and that hat has been mar,ed as exhibit soCandCso is in fact that seminal

or,. It is important to remember/ hoever/ that many more mundane ob-ects may beamenable to this ,ind of identification. A uni8ue contract/ or one that has been si#ned/

may be authenticated by a person ho is familiar ith the document or its si#natures. Arin# may have an inscription by hich it can be identified. Even a manufactured ob-ect/li,e a allet/ may be identifiable by its oner after years of use have #iven it a uni8ue

personality.

The second methodCCidentification in court of an ob-ect that has been made uni8ue/ is

extremely useful since it sometimes allos a layer or client to avoid the pitfalls ofprovin# a chain of custody by exercisin# some forethou#ht. If a itness ho can


5/27

establish an ob-ect1s relevance to the case mar,s it ith his si#nature/ initials/ or another

mar, that ill allo him to testify that he can tell it from all other ob-ects of its ,ind/ that

itness ill be alloed to identify the ob-ect in court and thus to authenticate it. "ften/ ifa member of the layer1s staff or another person early in the chain of custody mar,s the

evidence/ bi# problems can be avoided if a later lin, in the chain turns out to be missin#.

The third and least desirable ay to authenticate real evidence is by establishin# a chain

of custody. Establishin# a chain of custody re8uires that the hereabouts of the evidenceat all timessince the evidence as involved in the events at issue be established by

competent testimony.

The proponent of the evidence must also establish that the ob-ect/ in relevant respects/ has

not chan#ed or been altered beteen the events and the trial. This can sometimes be a tallorder/ or can re8uire the testimony of several itnesses. If there is any time from the

events in 8uestion to the day of trial durin# hich the location of the item cannot be

accounted for/ the chain is bro,en. In that case/ the evidence ill be excluded unlessanother method of authentication can be used.

V. DEMONSTRATIVE EVIDENCE.

Demonstrative evidence is -ust hat the name impliesCCit demonstrates or illustrates the

testimony of a itness. It ill be admissible hen/ ith accuracy sufficient for the tas, at

hand/ it fairly and accurately reflects that testimony and is otherise unob-ectionable.Typical examples of demonstrative evidence are maps/ dia#rams of the scene of an

occurrence/ animations/ and the li,e. ecause its purpose is to illustrate testimony/

demonstrative evidence is authenticated by the itness hose testimony is bein#illustrated. That itness ill usually identify salient features of the exhibit and testify that

it fairly and accurately reflects hat he sa or heard on a particular occasion/ such as the

location of people or thin#s on a dia#ram.

For some time in %alifornia/ there as a controversy over hether photo#raphs ere onlydemonstrative in nature or hether they had evidentiary value independent of the

testimony of the itness ho authenticated them. This problem as particularly pressin#

hen there wasno itness ho could confirm hat the camera sa as/ for example/here crucial identifyin# photo#raphs ere ta,en by automatic cameras.

Fortunately/ the courts in this state seem to have reached the only sensible solution/

hich is that photo#raphs can be either real or demonstrative evidence dependin# on ho

they are authenticated. $hen a photo#raph is authenticated by a itness ho observedhat is depicted in it and can testify that it accurately reflects hat he sa/ the

photo#raph is demonstrative evidence. $hen it is authenticated by a technician or otheritness ho testifies about the operation of the e8uipment used to ta,e it/ it is realevidence and is/ in the lan#ua#e of the courts/ a silent itness.

VI. DOCUMENTARY EVIDENCE.

Documentary evidence is often a ,ind of real evidence/ as for example here a contract is

offered to prove its terms. $hen a document is used this ay it is authenticated the same


6/27

ay as any other real evidenceCCby a itness ho identifies it or/ less commonly/ by

itnesses ho establish a chain of custody for it. &oever/ because they contain human

lan#ua#e/ and because of the historical development of the common la/ documentspresent special problems not presented by other forms of real evidence/ such as hen

they contain hearsay.

$hen dealin# ith documentary evidence/ it is a #ood idea to as, yourself four

8uestions>

5. Is there a parol evidence problem

;. Is there a best evidence problem

?. Is there an authentication problem

:. Is there a hearsay problem

The parol evidence rule/ hich bars the admission of extrinsic evidence to vary the terms

of a ritten a#reement/ is usually considered a matter of substantive la/ not of rule ofevidence. Accordin#ly/ e ill not deal ith it here.

As has been noted above/ documents can be authenticated the same ay as any other real

evidence. Evid. %ode 2 5:77/ 5:75/ 5:57C5:5


7/27

usually means photocopy/ the chance of a copy bein# in error/ as opposed to simply

ille#ible/ is sli#ht. In addition/ courts are reluctant to re8uire needless effort and delay

here there is no dispute about the fairness and ade8uacy of a photocopy.

Accordin#ly/ both %alifornia la and the federal rules allo the use of mechanicallyproduced duplicates unless a party has raised a #enuine 8uestion about the accuracy of

the copy or can sho that its use ould be unfair. Evid. %ode 22 5677 et se8.9 Fed. Rules

Evid. 577?. &oever/ there is alays a dan#er of a party 8uestionin# a document/ so it isimportant to remember that/ unless you have a stipulation to the contrary/ or your

document fits one of the exceptions listed in the statute/ you must be ready to produce

ori#inals of any documents involved in your case or to produce evidence of hy you

can1t.

@nder both %alifornia la and the federal rules/ compilations or summaries of

voluminous records may be received here the ori#inals are available for examination by

the other parties. Evid. %ode 2 567.

VII. TESTIMONIAL EVIDENCE.

Testimonial evidence is the most basic form of evidence and the only ,ind that does not

usually re8uire another form of evidence as a prere8uisite for its admissibility. *ee Evid.

%ode 2 37;bB9 Fed R. Evid.

5. &e must/ ith understandin#/ ta,e the oath or a substitute. Evid. %ode 22 357/ 3759

Fed. Rules Evid.


8/27

permits virtually any ,ind of affirmation by hich the itness/ in effect/ promises to tell

the truth. Evid. %ode 2 5


9/27

memory/ he must identify it as one that he made or sa hen he did remember the fact in

8uestion and that he ,ne then that the ritin# as accurate. Evid. %ode 2 5;?3. $ith

past recollection recorded/ the itness never ansers the 8uestion and the ritin# is theevidence.

ecause it is an out of court statement that is offered to prove the truth of its content/ a

past recollection recorded is hearsay. &oever/ it is admissible under its on exception

to the hearsay rule. Evid. %ode 2 5;?3aB9 Fed. Rules Evid. 47?6B. In addition/ li,e anyother documentary evidence/ a past recollection recorded must meet the re8uirements of

the best evidence rule. @nli,e other documentary evidence/ hile a past recollection

recorded may be read into the record/ it may not be shon to the -urors or ta,en ith

them hen they retire to deliberate. Id.

ias/ interest/ pre-udice/ and other #rounds to doubt the credibility of a itness #o only to

the ei#ht of his testimony and do not affect his competence. In particular/ it is not a

valid ob-ection to say that a statement by a itness is selfCservin#. 'resumably/ most orall statements by party itnesses are or are intended to be self servin#.

VIII. FORM OF E"AMINATION.

"n direct examination/ you are #enerally not permitted to as, leadin# 8uestions. Fed.

Rules Evid. $hen you entered the room did you see the defendant there

A> =es.

> $as he visibly a#itated

A> =es.

> Did you as, him hether he intended to deliver the #oods you had ordered

A> =es.

> Did he tell you that he had no intention of doin# so


10/27

A> =es.

"ther cases are not so clear>

> $hen you met the defendant that ni#ht/ hat as his physical condition

A> &e as sayin# from side to side.

> Did he seem to you to be drun,

A> =es.

As you can see/ in many ays/ leadin# is a matter of de#ree/ and borderline cases arematters of -ud#ment and ithin the court1s discretion/ as is the 8uestion of hen to allo

such leadin# 8uestions on direct. +ost of the time/ hen an ob-ection is sustained to a

leadin# 8uestion/ it is not difficult to rephrase the 8uestion to ma,e it unob-ectionable>

> $hen you sa the defendant that ni#ht/ as he drun,

%ounsel> "b-ection. !eadin#.

%ourt> *ustained.

> $hat as the defendant1s physical condition hen you sa him

A> &e as drun, as a s,un,.

As this last exchan#e shos/ not only is elicitin# testimony ith nonleadin# 8uestions

proper/ it is also usually more effective to let the itness tell the story if he can.

!eadin# 8uestions are permitted on direct in several circumstances. $e have already

discussed the propriety of a leadin# 8uestion to refresh a itness1s recollection. !eadin#

8uestions are also usually permitted in dealin# ith matters of bac,#round/ or to direct

the itness1s attention to a particular time and place or to a particular aspect of asituation. For example/ the folloin# should usually be permitted>

> $ere you at *loppy !ouie1s on the evenin# of the tenty fifth of (anuary

A> =es.

> Did you see the defendant1s car par,ed outside

A> =es.

> $as there anyone inside the car

A> =es.


11/27

> $ho

A> The defendant/ that dirty rotten s,un,.

%ounsel> I move to stri,e everythin# after the defendant as unresponsive/ irrelevant/

incompetent/ immaterial/ and pre-udicial.

%ourt> *o stric,en.

In the example above/ hile part of the itness1s answeras ob-ectionable for otherreasons/ the questioningould probably not be considered improper/ althou#h the first

three 8uestions mi#ht be considered leadin#.

!eadin# 8uestions may be alloed here/ in the -ud#e1s sound discretion/ they ill helpto elicit the testimony of a itness ho/ due to tender a#e/ incapacity/ or limited

intelli#ence/ is havin# trouble communicatin# his evidence. Fed. Rules Evid. *o stric,en. The -ury is instructed to disre#ard the last anser.

"f course/ the dama#e may already be done.

The problem ith the leadin# rule and narrative rule is that/ if they are bothinterpreted broadly/ they can completely prevent any meanin#ful examination. This is anarea here the advocate must be alert to the -ud#e1s preferences.

"n cross examination/ leadin# 8uestions are #enerally permitted and often necessary or

desirable. Evid. %ode 2 3


12/27

%ross examination is only permitted to in8uire into sub-ects that ere raised upon direct/

includin# credibility. Evid. %ode 2 3


13/27

3. "nership. Strauss v. 'ubuque "ire ( Marine Ins. o.5??B 5?; %al.App. ;4?/ ;:/

;; '.;d 64;.

4. The value of one1s on property. Evid. %ode 2 45?9 Schroeder v. )uto 'riveaway o.

53:B 55 %al.?d 74/ ;5/ 55: %al.Rptr.


14/27

may call another itness or offer other evidence to sho that it as in fact too dar, for

him to have seen hat he says he did.

The other five ays to attac, credibility are to attempt to sho

5. bias/ pre-udice/ interest/ or corruption/

;. criminal convictions/

?. prior bad acts/

:. prior inconsistent statements/ or

6. untruthful character.

The first four of these methods re8uire that/ before the itness is 8uestioned concernin#

the relevant facts/ counsel have a #ood faith basis to believe that the facts to be as,ed

about are true. These methods differ ith respect to hen extrinsic evidence is permitted

to prove the facts based upon hich the itness1s credibility is bein# attac,ed.

It is error not to allo in8uiry into possible bias/ pre-udice/ interest/ or corruption. Evid.

%ode 2 347 fB. In addition/ extrinsic evidence of bias is alays admissible.

@nder the federal rules/ a itness may #enerally be 8uestioned about criminalconvictions hen the crime as punishable by a sentence of more than a year or involved

fraud or false statement. There are other limits relatin# to the a#e of the conviction/ to a

itness ho is also the accused in a criminal case/ and to -uvenile ad-udications that youshould learn before you attempt to offer such evidence.

In %alifornia/ a itness may #enerally be 8uestioned about criminal convictions only ifthe convictions are for felonies and the itness has not been pardoned for innocence/

been #ranted a certificate of relief from civil disabilities/ or obtained other similar relief.Evid. %ode 2 344. @nder both sets of rules/ if the itness denies a criminal conviction/ it

may only be proved by offerin# a certified record of the conviction.

The federal rules allo 8uestions about prior bad acts of a itness to impeach credibility

here/ in the court1s discretion/ they are probative of truthfulness. Fed. Rules Evid.

5. The 8uestioner must have a #ood faith basis for believin# that the inconsistentstatement as made.


15/27

;. The itness must be reminded of the time/ place/ and circumstances of the statement.

This re8uirement is dispensed ith in %alifornia. Evid. %ode 2 3


16/27

The testimony of itnesses used to impeach the veracity of another itness may be

impeached in the same ays as that of other itnesses. In particular/ here a itness has

offered an opinion of the honesty or reputation for honesty of another itness/ thecharacter itness may be as,ed hether he ,ne of/ or hether his opinion ould have

been influenced by/ ,noled#e of various alle#ed misdeeds of the tar#et itness. Fed.

Rules Evid.


17/27

bad character for the same traits to sho that he acted in conformity ith that character.

Evid. %ode 2 557;9 Fed. Rules Evid. :7:aB5B. A criminal defendant may also offer

evidence of the character of a victim of a crime to sho action in conformity ith it.Evid. %ode 2 557?9 :7:aB;B. $hen he does so/ the prosecutor may respond in ,ind. Id.

The different ,inds of character evidence are a perennial source of confusion/ and care

must be ta,en to ,eep them distinct. The character of truth!ulnessof any witness/

includin# a criminal defendant/ is placed in issue hen he testi!ies/ and is received tosho action in conformity ith it. The character of a criminal de!endantor his alle#ed

victim for other traitsof character to sho action or nonaction in conformity ith it is

put in issue only hen the defendant calls a character itness. The character of other

personscan be in issue in a variety of ays/ but it cannotbe used to sho action inconformity ith it.

"II. THE RULE A!AINST HEARSAY.

The rule a#ainst hearsay is simply stated/ sometimes confusin# to apply/ and riddled ith

exceptions. Evid. %ode 2 5;77bB9 Fed. Rules Evid. 47;. =ou all ,no it. &earsay

evidence is evidence of a statement that as made other than by a itness hiletestifyin# at the hearin# in 8uestion and that is offered to prove the truth of the matter

stated. Evid. %ode 2 5;77aB9 Fed. Rules Evid. 475cB. A statement can be in ords orconduct that is intended by the actor as a substitute for ords. Evid. %ode 2 ;;6. The first

step in any analysis of possible hearsay is the determination of hether the statement

bein# offered is in fact hearsay. If the statement is nothearsay/ the analysis ends. If thestatement is hearsay/ step to is a determination of hether the hearsay statement fits

into one of the exceptions to the hearsay rule.

*ince evidence of an out of court statement that is used to prove somethin# other than the

truth of its content is not hearsay/ hether a statement is hearsay may depend on hy it is

bein# offered. If a statement has a possible use as hearsay and another nonhearsaypurpose/ it is #enerally admissible sub-ect to a limitin# instruction if re8uested/ and

sub-ect to the court1s discretion to ,eep it out if the -ud#e believes that its pre-udicial

effect outei#hs its probative value. As a result/ the folloin# out of court statements arenot hearsay>

5. &elpH &elp is not a statement about a fact/ it is a cry for assistance and cannot be

either true or false. $hether/ even if it ere hearsay/ it ould be sub-ect to the exceptionfor an excited utterance is beside the point.

;. I accept your offer. This is also not a statement of fact that can be true or false. In/ a

contract action/ the issue ould not be hether these ords ere true/ but hether theyeresaid.

?. (onesie is a lo don rotten scoundrel. If offered to sho that the spea,er had amotive to ,ill (onesie/ rather than to sho that (onesie is in fact a lo don rotten

scoundrel/ evidence of this statement ould not be hearsay. If the evidence ere offered

to prove that (onesie isa scoundrel/ it wouldbe hearsay/ and probably also ob-ectionableon other #rounds.


18/27


19/27

;. Excited utterances or spontaneous statements. Evid. %ode 2 5;:7.

?. *tatements about the declarant1s then existin# mental/ emotional/ or physical condition.

Evid. %ode 22 5;67/ 5;6;.

:. *tatements made by the declarant for the purpose of medical dia#nosis or treatment.

6. 'ast recollections recorded. Evid. %ode 2 5;?3.


20/27

;?. (ud#ments of a court concernin# personal history/ family history/ #eneral history/ or

boundaries/ here those matters ere essential to the -ud#ment.

;:. The catchall rule.

Fed. Rules Evid. 47?.

The federal exceptions that dore8uire proof that the declarant is unavailable are>

5. Former testimony of a itness offered a#ainst a party here that party/ or apredecessor in interest ith similar motives/ had an opportunity to 8uestion the declarant.

See alsoEvid. %ode 22 5;7/ 5;5/ 5;;.

;. Dyin# declarations. See alsoEvid. %ode 2 5;:;.

?. *tatements a#ainst interest. See alsoEvid. %ode 2 5;;:/ 5;;6/ 5;?7.

:. *tatements by certain persons of personal or family history. See alsoEvid. %ode 2

5?57/ 5?55. Fed. Rules Evid. 47:.

+ost of %alifornia1s hearsay exceptions are contained in *ections 5;;7 throu#h 5?67 of

the Evidence %ode. =ou should read these sections/ since even here a similar exceptionis reco#ni0ed under both sets of rules there are often differences in the scope of the

exceptions. %alifornia la does not have exceptions that are as broad as the federal

exceptions for learned treatises or as the catchall provision. &oever/ it does have

additional exceptions/ not explicitly found in the federal rules/ for the folloin#>

5. Evidence of a statement by a minor child if offered in certain actions a#ainst a person

alle#ed to have in-ured the child. Evid. %ode 2 5;;


21/27

4. *tatements concernin# the family history of another here the declarant is unavailable

under certain circumstances. Evid. %ode 2 5?55.

. *tatements concernin# boundaries. Evid. %ode 2 5?;?.

57. %ertain statements in serious felony prosecutions. Evid. %ode 2 5?67.

55. %ertain statements by unavailable declarants concernin# in-uries inflicted on them.Evid. %ode 2 5?67.

*ometimes a layer ill ant to present evidence that consists of multiple levels of

hearsay. For example/ suppose I ant to introduce a patient1s hospital file to sho that

hen he as struc, by the defendant he be#an bleedin# from the head. The hospital1s file/hich is hat I ant to offer/ has a note by the staff physician on duty sayin# that/ hen

the patient came to the emer#ency room for treatment/ he told the staff physician that

hen he as hit by the defendant he be#an bleedin# profusely from the head. The onlylive itness I have is a records cler, from the hospital.

+y evidence in this case consists of double hearsay. The hospital record is an out of courtstatement offered to prove the truth of its contentCChat the patient told the emer#ency

room physician. In addition/ even if I could call the physician as a itness/ his testimonyconcernin# hat the patient told him ould also be hearsay/ since it ould be offered to

sho that the patient did in fact start bleedin# hen the defendant hit him. Thus/ I have

one hearsay declarationCCthe patient1s statement about hat happened to himCCrapped inanother hearsay declarationCCthe doctor1s statement about hat the patient said.

The analysis for multiple hearsay is simple if it is ta,en one step at a time. The rule is

that/ in order for multiple hearsay to be admissible/ there must be an exception to the

hearsay rule that is applicable to each level of the hearsay. Evid. %ode 2 5;759 Fed. Rules

Evid. 476. The best ay to start the analysis is to ima#ine the ultimate eyeitness on thestand. In this case it is the patient. &is statement is not hearsay and ould be admissible

if it is relevant to the case.

)ext/ ima#ine the person ho forms the next lin, in the chain of hearsay on the stand. Inthis case it is the doctor. &is testimony ould clearly be hearsay. &oever/ the doctor1s

ima#inary testimony about the patient1s statement mi#ht ell be admissible under the

excited utterance exception or/ in Federal %ourt/ the exception for statements made in aidof medical treatment or/ in state court/ the exception for statements about the declarant1s

prior physical condition. )ext/ ima#ine offerin# the medical record that contains the

doctor1s statement. It may be sub-ect to the hearsay exception for business records and

therefore be admissible to prove that the doctor made the statement if a proper foundationis laid throu#h the custodian of records.

Thus/ it loo,s li,e the medical record comes in to prove that the patient did start to bleed

from the head hen he as struc,. "n the other hand/ if any level of the hearsay fails tofall ithin an exception/ the proof ill not be received. All multiple hearsay problems/ no

matter ho involved/ ill ultimately yield to the same type of analysis.


22/27

The credibility of a hearsay declarant may be attac,ed in the same ays as that of any

itness. Evid. %ode 2 5;7;.

"III. RIVILE!ES.

Evidentiary privile#es are ri#hts held by certain persons that allo them either to refuseto provide evidence or to prevent evidence from bein# offered a#ainst them. 'rivile#es

are contrary to the #eneral rules that all relevant and competent evidence is admissibleand that every citi0en has an obli#ation to #ive evidence in a -udicial proceedin#. Evid.

%ode 2 55. 'rivile#es also hinder the basic function of the -udicial system/ hich is thesearch for truth. Accordin#ly/ privile#es only exist to serve important interests and

relationships/ they are construed narroly/ and ne ones are rarely created/ at least by the

courts.

*ince privile#es are meant to vindicate a private or public interest in confidentiality/ andsince they are disfavored/ they can be aived by the persons or entities they are meant to

protect. The person or persons ho can aive the privile#e are called holders of the

privile#e. $here more than one person holds a privile#e/ sometimes the act of only one is

re8uired to aive it and sometimes an act of both is re8uired. Evid. %ode 2 5;. In manycases/ the nonholder ho is a party to a privile#ed communication is re8uired to assert

the privile#e on behalf of the holder.

In %alifornia/ no adverse inference may be dran from the exercise of a privile#e in any,ind of case. Evid. %ode 2 5?. In federal courts/ an adverse inference may sometimes be

dran in a civil case or administrative proceedin#.*axter v. #almigiano53

5. The privile#e a#ainst selfCincrimination. Evid. %ode 2 :7 et se8.

;. The attorneyCclient privile#e. This one is held by the client. Evid. %ode 2 67 et se8.

?. The privile#e of a married person not to testify a#ainst his spouse. Evid. %ode 2 37.This one belon#s to the spouse called to testify.

:. The privile#e for confidential marital communications. Evid. %ode 2 47 et se8. This

one belon#s to both spouses.


23/27

6. The physicianCpatient privile#e. Evid. %ode 2 7 et se8. This one belon#s to the

patient. Evid. %ode 2 ?.


24/27

In %alifornia/ presumptions are either conclusive or rebuttable. Evid. %ode 2


25/27

list of the most common conclusive presumptions is #iven in the Evidence %ode startin#

at *ection


26/27

based upon the erroneous reception of the hearsay. =ou also have no ri#ht to ar#ue your

opposition to ob-ections/ thou#h a -ud#e may permit you to do so.

ecause of the lac, of a ri#ht to ar#ue ob-ections/ it is important for you to attempt to

anticipate si#nificant evidentiary issues and to brief them in a motion in limine/ hich issubmitted to the court at the be#innin# of the trial. If you raise an evidentiary issue in a

motion in limine/ you should refer to the motion hen the evidence in 8uestion comes up/

but doin# so does notrelieve you of the obli#ation of specifyin# the #rounds of yourob-ection at that time and ma,in# an offer of proof if necessary.

If you are offerin# evidence and an ob-ection is sustained/ in order to preserve the

exclusion as a possible #round for appeal you must ma,e an offer of proof. Evid. %ode 2

?6:9 Fed. Rules Evid. 57?aB;B. $hen the rulin# is made/ as, the court for anopportunity to ma,e such an offer. @sually this is done outside the presence of the -ury/

often at the next brea, in the testimony. Evid. %ode 2 :7;9 Fed. Rules Evid. 57?cB. Thus/

it is important to ,eep a runnin# list of any such offers you need to ma,e since/ if youfor#et/ you ill not be able to complain of the rulin# on appeal. A proper offer must

include a description of the substance/ purpose/ and relevance of the evidence that you

ould present if permitted. Evid. %ode 2 ?6:9 Fed. Rules Evid. 57?aB;B.

An offer of proof/ can also provide you ith a means of miti#ate the effect of the rule thatyou have no ri#ht to ar#ue evidentiary rulin#s. A ell formulated offer of proof can

sometimes persuade the court that its initial decision to exclude your evidence as

incorrect.

"VII. MISCELLANEOUS OTHER RULES.

A list of other commonly encountered rules follos>

5. Evidence of subse8uent remedial measures is not admissible to sho previousne#li#ence or culpable conduct. Evid. %ode 2 55659 Fed. Rules Evid. :73.

;. Evidence of mediation or settlement discussions is not admissible to prove liability for

the claims that ere bein# discussed. Evid. %ode 2 556;/ 556;.69 Fed. Rules Evid. :74.)or is evidence of the payment of medical expenses to sho liability. Fed. Rules Evid.

:7. )or/ in %alifornia/ is evidence of partial satisfaction of any asserted claim to prove

the validity of the claim. Evid. %ode 2 556;. )or is evidence of a #uilty plea that is laterithdran/ nor any statements made in connection ith it. Evid. %ode 2 556?9 Fed. Rules

Evid. :57.

?. The court may call its on itnesses and may 8uestion any itness. Evid. %ode 2 3369Fed. Rules Evid.


27/27

"VIII. CONCLUSION.

$hile this hirlind summary of the la of evidence is by no means complete/ if you

have mastered the concepts it contains and read the materials su##ested/ you ill be able

to deal ith the vast ma-ority of evidentiary problems that you ill encounter and illusually have a #ood idea hen you need to loo, up a rule or statute or to research the

cases.+nowledgeof the rules of evidence ill enable you to put your proof before the

finder of fact and maybe to ,eep some of your opponent1s proof from bein# received.on!idencein your ,noled#e of the rules ill free you to concentrate on the ,ind of

effective presentation and ar#ument that ill help you to in your case.

SELECT REFERENCES

5. Federal Rules of Evidence. The federal rules are short/ and you should read themthrou#h/ includin# the notes of the advisory committee and con#ressional committees.

;. . (efferson/ ali!ornia vidence *ench *oo-. +any -ud#es consider this treatise to beholy rit. =ou ill see it on many of their benches.

?. . $it,in/ ali!ornia vidence. The other leadin# treatise on %alifornia1s la of

evidence.
http://www.law.cornell.edu/rules/fre/overview.htmlhttp://www.law.cornell.edu/rules/fre/overview.html

Documents

149623726 a Summary of the Rules of Evidence