Evidence Cheat Sheet

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   a. Summary: Non-hearsay uses of out of court statements: a. DECLARANT¶S STATE OF MIND 1. LYONS v MORRIS COSTUMES (MISTAKE) 2. US v. PARRY (KNOWLEDGE) b. EFFECT ON LISTENER 1. SUBRAMANIAM v. PP (FEAR, DURESS) 2. US v. JOHNSON (KNOWLEDGE) 3. US v. JEFFERSON (KNOWLEDGE) c. VERBAL ACTS (³OPERATIVE CONDUCT´) 1. US v. SAAVEDRA (FRAUD) 2. Hanson v Johnson (transfer) 3. Creaghe v Iowa (cancellation) 4. US v Montana (demand) d. possible uses of out of court statements; 1. mistake 2. knowledge 3. fear, duress 4. fraud, etc. e. introduced to prove matter asserted? 1. what is matter asserted? 2. person introducing it want that proved? ï hearsay 3. if used to prove something else, make other inferences, then ï non-hearsay.   c

 


a. Communicate w/o trying²like putting on sweater to signal cold; judges sometimes treat conduct as hearsay. a. FRE defines ³statements´ to include non-verbal conduct only when it is intended as a form of communication. 1. nonverbal conduct of a person, if it is intended by the person as an V
. FRE 801. b. Verbal expressions that reveal something other than intended meaningï generally treated as non-hearsay (admissible), either on ground that not offer to prove matter asserted or there is no matter asserted. b. Signaling w/o words

a. Captain took family on board (X) ï thought it was safe (Y) ï (Y is true) ship was safe b. English law ï hearsay c. American law ï Hearsay only if conduct X is assertive conduct. c. Say one thing mean another a. Said X ï thought Y ï Y is true b. English law ï hearsay c. American law ï not hearsay (unless X was intended to communicated Y). d. Assertive conduct ï can be hearsay a. Nodding to indicate yes b. Raising hand to indicate yes c. Keeping hand down to indicate no. d. Pointing at picture to identify assailant. e. Non-assertive conduct ï cannot be hearsay a. Taking off sweater b/c warm b. Staying silent because temperature is comfortable. c. Fleeing country to escape prosecution f. Ask what was declarant trying to communicate? 


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   Not hearsay if witness/declarant, is in court, under oath, and statement is a. witness said something in the past that contradicts what he is saying now. 1. [witness is declarant basically, hearsay, but the declarant is actually now in court, for you to cross-examine; so should not be prohibited by hearsay rule] b. Consistent, but offered to rebut charge of recent fabrication of improper motive or influence. c. Identification of person after perceiving him. d. Notes: Why not exempt all prior statements by witnesses? Drafters of FRE did not go this far«more of experience than of logic. e.   : Prior inconsistent statements 1. no need to consider hearsay rules at all if introduce prior inconsistent statements used solely to impeach.



2. don't have to testify. f. CEC: May be offered as substantive evidence, FRE is not. g. Under FRE, prior statement must be under oath to prove the truth of the matter asserted in order to go to substantive evadence. ,"     
 


   1. F attacked by R, lost memory but later identified R; at witness stand, said could not remember seeing assailant, only that he identified him to investigator. 2. 801(d)(1)(C): not hearsay a prior statement of identification of a person made after perceiving the person, if declarant testifies at trial or hearing, subject to cross-exam. 3. premise for this rule is that, with adequate safeguards against suggestiveness, out of court IDs were generally preferable to courtroom IDs.

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 ‡ Record concerning matter about which witness once had knowledge bu now has insufficient recollection to testify fully and accurately ‡ must have been made or adopted by the witness when the matter was fresh in the witness's memory ‡ must reflect that knowledge correctly. ‡ May then be read into evidence, but not admitted as exhibit unless by adverse party. È 




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Elements 1. record of business 2. regularly maintained 3. made promptly 4. based on knowledge

ƒ. supported by testimony [or] appears trustworthy. CEC  % 


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  !"#$%&'(&)( a. Rationale? Reliability and practical necessity« b. Religious rationale no longer apply, but psychological pressures« c. Shepard²Cardozo 1. conscious of swift and certain doom. d. Imminent death and subject matter: 1. must be in prosecution for 

 or in civil proceeding with no posse of imprisonment. 2. must concern death²cause or circumstances«he statement must concern ''the cause or circumstances'' of what declarant ''believed to be impending death.'' 3. Must Have personal knowledge, not speculation a. The difficult cases are those where the declarant's statement launches into a narrative, relating to something like an earlier argument between the parties, or a previous threat, situations in which courts have often excluded statements on the basis that they do not relate to the cause and circumstances of impending death. If the court interprets the exception broadly, such statements can be considered as bearing on the cause of death. 4. federal rule²do not have to die a. Belief in the certainty of death, is an indispensable requirement b. Death need not actually have occurred. The guarantee of trustworthiness is that at the time the statement was made, the declarant believed that the declarant's death was imminent. ƒ. CA rule²likely you do have to die e. limitations: f. Confrontation clause issues: Appellate courts will eventually either exclude dying declarations from confrontation requirements altogether or develop rules for determining whether a proffered dying declaration is ''testimonial'' under 2V 

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‡ Elements: ‡ Contrary to pecuniary ‡ Regardless of the type of interest involved, the declarant must be  
' , as defined in Rule 804(a) ‡ The declarant must have  
 the facts to which the statement relates.

‡ At the moment the statement is made the declarant must believe that the statement is against the declarant's interest. ‡ Only a    * +
    are admissible against other persons under this hearsay exception. If the statement or any part of it serves the    *
 , it is not admissible as a statement against interest ‡ A statement tending to expose the declarant to criminal liability and offered to exculpate the accused in not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ‡ CA rule expands scope²statements created against social interest²e.g., disgrace in the community²but this is rarely used. ‡ ³created such a risk of making him an object of hatred, ridicule, or social disgrace in the community.´ ‡ Williamson: ³804b3«does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.´ ‡ fear that criminals in custody would try to curry favor with police by incriminating others. 
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 orfeiture by Wrongdoing ‡ FRE 804(b)(6): A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.    ! +

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!   Character Evidence ß? FRE 404(a): Character Evidence Generally: Evidence of a person¶s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: ß? CEC 1101 Evidence of Character to Prove Conduct ? (a): Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person¶s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) in inadmissible when offered to prove his or her conduct on a specific occasion: ? (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact ( such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted sexual act did no reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. ß? Character in issue: ? Notice: Employee¶s character relevant to RR¶s negligence ? Parent¶s character relevant to parental fitness ? Relevant to truth of alleged libel, and to damages. Exceptions to Character Evidence Ban: ß? FRE 404(a) ? (1): Character of the Accused: In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; ? (2): Character of the Victim: In a criminal case, and subject to the limitation of rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the Ô? Ô?

prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor (Not in CEC); ß? Defendant can open either door. ? (3) Character of witness: Evidence of the character of a witness as provided in rules 607-609. ß? 404(b): Other Crimes, Wrongs or Acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preperation, plan, knowledge, identity, or absence of mistake or accident, rovided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notive in advance of trial, or during trial if the court excuses pretrial notive on good cause shown, of the general nature of any such evidence it intends to introduce at trial. ß? CEC 1102 Opinion and reputation evidence of character of criminal defendant to prove conduct: In a criminal action evidence of the defendant¶s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: ? (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. (Defendant can open either door) ? (b) Offered b the prosecution to rebut evidence adduced by the defendant under subdivision (a) ß? CEC 1103 Character evidence of the crime victim to prove conduct . . . ? (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: ß? (1) Offered by the defendant to prove the conduct of the victim in conformity with the character or trait of character. (Defendant opens either door.) ß? (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1) ? (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 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 chow violence has been adduced by the defendant under paragraph (1) of subdivision (a). Methods of Proving Character ß? FRE 40ƒ Methods of Proving Character: ? (a) Reputation or Opinion: In all cases in which evidence of character or a trait of character is admissible, proof may be made by testimony as to reputation or by testimony in the form of opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct (but only to show what the witness¶s standard of opinion concerning reputation).

? (b) Specific instances of conduct: In cases in which character or a trait of character of a person is an essential element of a charge claim, or defense, proof may also be made of specific instances of that person¶s conduct. ß? CEC: see 1102-03 supra. Habit Ô? FRE 407: Evidence of the habit of a person or of the routine practice of an organization, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Ô? CEC 1104 Character trait for care or skill: Except as provided in Section 1102 and 1103, evidence of a trait of a person¶s character with repect to care or skill is inadmissible to prove the quality of his conduct on a specific occasion Ô? CEC 110ƒ Habit or custom to prove specific behavior: Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specific occasion in conformity with the habit or custom. Ô? McCormick on Habit: ? A regular practice of meeting a particular kind of situation with a specific type of conduct ? Habitual acts become semi-automatic. A volitional act is less likely to be considered habit. ? More probative, less prejudicial than character evidence. Character of the Victim in Sex Cases: Ô? FRE 412 ? (a) Evidence Generally Admissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct as provided in subdivisions (b) and (c): ß? (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior ß? (2) Evidence offered to prove any alleged victim¶s sexual predisposition ? (b) Exceptions: ß? (1) In a criminal case, the following evidence is admissible: Ô? (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence Ô? (B)Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and Ô? (C) evidence the exclusion of which would violate the constitutional rights of the defendant. ß? (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim¶s reputation is admissible only if it has be placed in controversy by the alleged victim. Ô? CEC 1103

? (c) (1): In any prosecution for rape or sexual assault except where the crime is alleged to have occurred in a local detention facility or a state prison, opinion evidence, reputation evidence, and evidence of specific instances of conduct of the complaining witness¶s sexual conduct, or any of that evidence,, is not admissible by the defendant in order to prove consent by the complaining witness. ? (2) Evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. ? Paragraph (1) shall not be applicable to evidence of the complaining witness¶ sexual conduct with the defendant. Ô? CEC 1106 Sexual harassment, sexual assault, or sexual battery cases ? (a) IN any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff¶s sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absene of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium. ? (b) (a) shall not be applicable t evidence of the plaintiff¶s conduct with the alleged perpetrator. Character of the Defendant in Sex Cases: Ô? 413(a) In a criminal case in which the defendant is accused 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 Ô? 414(a) IN a criminal case in which the defendant is accused of an offense of child molestation, . . . Ô? 41ƒ(a) In any civil case in which a claim for damages or other relief is predicated on a party¶s alleged commission of conduct constituting an offense of sexual assault, 414 and 41ƒ govern.

Attorney strategy Not discoverable in Cal Fed: No ruleing. much higher showing (at a minimum) than regular work product.