* Evidence (Federal Rules) *

(California Code is different from the Federal Rules . .

It will be explained apart where it is written as CC) 

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1. ** Relevancy  

   1. Logical Relevancy: Evidence is logically relevant if evidence has tendency to make a material fact more or less probable than it would be without the evidence (As to CC, the material fact of consequence must also be in dispute)  

      1. ​Seven Exceptions ( = These seven evidence can be admitted to the courtroom even though the evidence does not make a material fact more or less probable than not) 

         1. similar occurrences or acts (to prove intent, motive or causation)

         2. sales of similar property (to establish value)

         3. similar accidents or injuries caused by same event or condition

         4. habitual evidence (repeated conduct)

         5. routine business practice (the conduct is in conformity with the business practice) **

         6. industry custom, that is, ‘what is done’ within the relevant industry (generally to prove standard of care in Negligence cases: Negligence will be explained in details in "Torts")

         7. prior false claims (sexual assault and child molestation cases; and as to CC, domestic violence and elderly abuse cases) 

   2. Legal Relevancy: Courts can exclude relevant evidence if the Probative Value is substantially outweighed by (i) unfair prejudice, (ii) confusion of the issues, (iii) misleading the juries, (iv) waste of time, (v) undue delay or (vi) cumulative evidence (i.e., facts or information that proves what has previously been established by other information concerning the same issue) ** ​

   3. Policy-Based Exclusionary Rule 

      1. Evidence of Liability Insurance:

         1. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully 

         2. This evidence is inadmissible to prove culpable conduct like negligence or D's ability to pay

         3. Exceptions: However, the evidence could be admissible to show admission, bias, control, impeachment, ownership, or scope of employment

      2. Evidence of Subsequent Remedial Measures or Repairs:

         1. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove

         2. This evidence is inadmissible to prove negligence (this will be explained in Torts), culpable conduct and a defective product design in products liability actions (this will be explained in Torts)(As to CC: It is admissible to prove defective product design in products liability actions)

         3. Exceptions: However, the evidence could be admissible to rebut defense of no feasible precaution

            1. Example) "I repaired the roof, I should have repaired it before it fell and hurt the victim”, this evidence will be admissible to prove that he or she could have stopped the injury or harm before it hurt the victim **

      3. Evidence of Settlements or Offers to Settle

         1. Civil case: The evidence of settlements &  offers to settle, and all related statements that was said at the time by the D are inadmissible to prove liability or fault

         2. Criminal case: The evidence of settlements &  offers to settle, and all related statements that were said at the time by the D are inadmissible to prove guilt

            1. Example) "If you sign a release, I will pay all the bills. I should not have passed the red light"

               1. All this statement will be excluded under this Settlement Evidence Rule when the other party tries to prove liability or fault (in civil cases) or guilt (in criminal cases)

               2. As to CC, even if the evidence could be admissible, the court may exclude the evidence due to unfair prejudice ** 

      4. Evidence of Payment or Offers to Pay Medical Expenses 

         1. This evidence is inadmissible when offered to prove liability or fault for the injuries 

         2. Example: " (a) I’ll pay your hospital bill. (b) I should not have passed the red light" 

            1. Here, the (a) part is inadmissible for it is related to the statements considering the payment of medical expenses, whereas the (b) part, which is not related to the statements considering the payment of medical expenses, is admissible

            2. As to CC, (a) & (b) both are inadmissible 

      5.  Evidence of Expressions of Sympathy​

         1. Evidence of expression of sympathy relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of admission of liability in a civil action

         2. Yet, a statement of fault that is part of, or in addition to, any of the above shall be admissible

         3. Example: " (a) I'm sorry your car was totaled. (b) I was talking on the phone and dropped my headset"

            1.  Here, the (a) part is inadmissible for it conveys expression of sympathy, whereas the (b) part, which does not convey expression of sympathy will be admissible **

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  2. Personal Knowledge

1. Capacity of the Witness to testify in order for a witness to testify, the witness must have: 

   1. personal knowledge(i.e., perceive the facts he or she testify with his or her senses) of the matter; and  

   2. taken an oath or affirmation to tell the truth

      1. Judge and jurors can never be witnesses 

      2. Dead Man Acts: An interested party in the lawsuit is incompetent to testify to a personal transaction or communication with a deceased

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  3. Character Evidence  

1. Definition: Character Evidence (CE) may be (a) offered as substantive evidence to prove character when it is the ultimate issue in the case, or (b) serve as circumstantial evidence of how a person probably acted

2. Methods to allege CE: Specific Acts, Opinion & Reputation 

3. Civil cases of CE 

   1. Generally, in civil cases, CE is not admissible unless character is at issue

      1. Civil cases where character is at issue

         1. Defamation;

         2. Negligent Entrustment (i.e., a theory or doctrine making a person liable for injury caused by another person to whom the person negligently entrusted a dangerous article such as a motor vehicle);

         3. Fraud/Deceit/Misrepresentation;

         4. Child Custody **

4. Criminal cases of CE 

   1. Character of the D can be shown: 

      1. by the D: the D could offer evidence of his or her own good character for a pertinent trait

      2. by the Prosecution

         1. The Prosecution could show the bad character of the D only to rebut when the D opens the door by presenting his or her good character for the pertinent trait, in the form of reputation or opinion to show his or her innocence

            1. The Prosecution could cross-examine the character witness whether he or she heard or know of the specific acts of D

            2. The Prosecution could call qualified witnesses to testify to the bad reputation of D, or give opinion of D's character **

      3. Method of Proving the Character of the D

         1. Direct Examination: Reputation and opinion are admissible

         2. Cross Examination: Reputation, opinion, and specific acts are all admissible. However, If the witness denies knowledge of the specific acts, the offeror is not allowed to prove with extrinsic evidence (i.e., outside evidence or evidence that is inadmissible or not proper before the court or the jury)

         3. As to CC, ​reputation and opinion are only admissible in both Direct Examination and Cross Examination 

            1. ​However, in prosecution for crime of domestic violence or elderly abuse in CC, prosecution may offer evidence that defendant committed other specific acts of domestic violence or elderly abuse **

   2. Character of the Victim can be show: 

      1. The D could present evidence of the bad character of the victim when it is relevant to show that the D is innocent 

         1. The Prosecution can then offer evidence to rebut that the D has the same bad character trait 

         2. As to CC, where the court has admitted evidence of the victim's character for violence offered by the D, prosecution may offer evidence that the D also has violent character ​​

      2. Method of Proving the Character of the Victim 

         1. Direct Examination: Reputation and opinion are admissible

            1. As to CC, specific acts are also allowed along with reputation and opinion

         2. Cross Examination: Reputation, opinion, & specific acts are allowed

            1. As to CC, the same methods are used. However, if the witness denies knowledge of the specific acts, the offeror is not allowed to prove with extrinsic evidence **

   3. Rape Victims Character

      1. The character of the victims of rape is generally inadmissible 

         1. Exceptions in Civil Cases: In a civil case the character of the victim is admissible through reputation, opinion and specific acts when the "plaintiff ( = usually the victim)" initiates an inquiry into his or her prior sexual conduct, which then the D may cross examine and rebut 

            1. In this case, the evidence is admissible as long as its probative value is not substantially outweighed by a danger of unfair prejudice to the victim

         2. Exceptions in Criminal Cases: In a criminal case the character of the victim is admissible through specific acts to prove (the reputation and opinion of the victim is inadmissible in criminal cases):

            1. not D but other person is the root of the semen or other physical evidence

            2. there was a consent by the victim during the sexual misconduct. Generally this is proved through the past sexual behavior by the victim with the D if it is applicable

               1. Unlike civil cases, if the "prosecution" initiates an inquiry into the prior sexual conduct of the victim, the D may cross examine and rebut **

   4.  Additional Crimes, Wrongs or Acts

      1. Evidence of other crimes, wrongs, or acts that are not related to the case at issue are not admissible to prove character unless the evidence are offered to show: 

         1. ​identity of the D,

         2. intent of the D,

         3. knowledge of the D,

         4. mistake of the D,

         5. motive of the D,

         6. opportunity given to the D, 

         7. plan (common plan or scheme) by the D 

      2. In order for the above seven evidences to be admissible, there must be:

         1. sufficient evidence to support that the D committed the prior act, and

         2. its probative value must not be substantially outweighed by unfair prejudice **  

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  4. Testimonial Evidence 

1. Capacity of the Witness to Testify

   1. In order for a witness to testify, the witness must have:

      1. personal knowledge (i.e., perceive the facts he or she testify with his or her senses) of the matter; and 

      2. taken an oath or affirmation to tell the truth

         1. Judge and jurors can never be witnesses 

         2. Dead Man Acts: An interested party in the lawsuit is incompetent to testify to a personal transaction or communication with a deceased ** 

2. Objection 

   1. Definition: When a lawyer says "objection" during court, which need to be done timely (i.e., failure to timely object is deemed a waiver of any ground for objection) and specifically, he or she is telling the judge that he or she thinks his or her opponent violated a rule of procedure. And if the judge rules the objection is "sustained", it means the judge agrees with the objection and disallows the testimony, question, or evidence), and if the judge rules the objection is "overruled", it means the judge disagrees with the objection and allows the question, testimony, or evidence

   2. Types of Objection

      1. Argumentative: A question makes an argument rather than asking a question, which is generally not permitted 

      2. Calls for Narrative: A question that asks the witness to relate a long story rather than state specific facts, is generally not permitted

      3. Calls for Speculation: A question that is asked for the witness to guess the answer rather than to rely on known facts, is generally not permitted 

      4. Compound: Multiple questions are asked together, which is generally not permitted  

      5. Irrelevant: A question is not about the issue in the trial, which is generally not permitted 

      6. Leading Question: A question that leads a witness to an answer **

         1. Leading question is permitted only on cross examination 

            1. The content of the cross examination must stay within the  scope of the content of the direct examination (i.e., matters brought out on direct examination and the inferences drawn from those matters), and testing the credibility of the witnesses

               1. ​Note that no extrinsic evidence (i.e., any evidence other than testimony given at this proceeding by the witness being impeached such as testimony of other witnesses, writings, prior statement of the witness who is not testifying) could be introduced in proving a collateral matter (i.e., a fact not material to the issues in the case that says nothing about the witness credibility other than to contradict the witness)

         2. Leading question is not permitted on direct examination unless:

            1. to elicit introductory matter (i.e., introducing the topic of the case), 

            2. the question is against adverse/hostile witness (i.e., one who is with the opposing party because of a relationship or a common interest in the outcome of the litigation with the opposing party (e.g., in a criminal case brought by a state against a D, a witness whose interest is with the interest of the state is an adverse/hostile witness to the D. If the witness is not a party and has no legal interest in the outcome of the litigation, then the witness is not an adverse/hostile witness), or

            3. the witness needs a genuine aid due to loss of memory or immaturity

      7. Misleading: A question is not clear and precise enough for the witness to properly answer, which is generally not permitted 

      8. Non-responsive: The response of the witness constitutes an answer to a question other than the one that was asked, or no answer at all, which is generally not permitted **

3. Use of Documents while Testifying

   1. Present Refreshing Recollection 

      1. Anything can be used to refresh the memory of the witness in order for the witness to answer as to the question he or she has received in court 

      2. The witness, however, cannot read from the transcript or testify as to what the document states to the jury, yet can only refresh his or her memory by looking at the transcript, and must testify based on his or her own recollection of the events that was written in the transcript
      3. The writing would normally not be entered into evidence unless the opposing party suggested that it be admitted **
   2. Past Recollection Recorded
      1. Anything can be used to refresh the memory of the witness in order for the witness to answer as to the question he or she has received in court 
      2. This allows a witness to read a writing to a jury If: 
         1. the witness once had personal knowledge of the writing;
         2. the witness now has insufficient recollection to testify; 
         3. the writing was accurately made by the witness, under the direction of the witness, or adopted (i.e., another person made the record and witness did or said something to indicate she agreed with the contents) by the witness; and 
         4. the writing was made when the event was fresh in his or her memory  **

4. Opinion Testimony

   1. Rule: Opinion Testimony is generally inadmissible. However, lay opinion and expert opinion may be admitted in certain circumstances

      1. Lay opinion

         1. Definition: Evidence given by a witness who is not qualified as an expert but who testifies to his or her opinion or inference 

         2. Lay opinion is admissible in court if:

            1. the opinion is rationally based on the perception (i.e., awareness & understanding) of the witness; 

            2. it is helpful to the jury to understand a fact in issue; 

            3. does not require any special analysis; and 

            4. must not make a legal conclusion 

         3. Examples) Identity of a person; intent of a person; the state of emotion, health, or injury of a person; degree of intoxication of a person; Identification of a writing; the value of a property owned by a person; distance, speed and size of an automobile; sanity of a person, etc. **

      2. Expert Opinion

         1. Definition: An opinion from an expert is the advice or judgment that they give you in the subject that they know a lot about

         2. Expert opinion is admissible in court if:

            1. it is helpful to the jury – expert uses specialized knowledge to reach conclusion the average juror could not figure out for himself or herself (i.e., the subject matter is one where scientific, technological, or other specialized knowledge would assist to understand the trier of fact that is at issue)

            2. the expert must be qualified – expert must have special skill, knowledge, experience, training or education on the subject (i.e., however the expert does not need to have academic qualifications in order to give expert opinion)

            3. the expert must believe in the opinion to reasonable degree of certainty 

            4. the opinion must be based on sufficient facts or data: (a) admitted evidence; (b) personal knowledge; or (c) inadmissible evidence reasonably relied upon experts in the particular field (e.g. lab report) **

            5. The opinion is based on reliable principles that were reliably applied

               1. Scientific Reliability Test (e.g., Daubert case) weighs the following factors:

                  1. peer review in scientific journals; 

                  2. has been tested and is subject to retesting; 

                  3. has a low error rate; and

                  4. has a reasonable level of acceptance

               2. General Reliability Test:

                  1. it must be reliable from common sense and logical perspective 

               3. Under CC, General Acceptance Standard:

                  1. reliability of scientific opinions is determined by one factor, which is to be generally accepted by the experts in the field

                  2. however, this general acceptance standard does not apply to non-scientific opinions and medical opinions, reliability which is based on facts and circumstances of case 

               4. Learned treaties:

                  1. treaties are said to be an accepted authority of all field **

5. Evidence of Witness Credibility 

   1. Rule: Generally, the evidence of the witness credibility is inadmissible, unless the credibility has been impeached

      1. That is, no bolstering testimony of a witness is allowed unless the witness has been impeached

      2. Note that “prior consistent statement” is admissible after credibility of a witness has been attacked (i.e., impeached) for fabrication or improper motive, and the prior consistent statement was made before the prior inconsistent statement concerning the fabrication or improper motive 

   2. Impeachment Evidence 

      1. Definition: Any party can discredit the testimony of a witness by proving that he or she has not told the truth or has been inconsistent by introducing contrary evidence 

      2. Rule: Witness may be impeached upon cross-examination regarding any specific conduct that is probative of truthfulness but the cross-examiner must make the inquiry in good faith

      3. Ways to Impeach

         1. Cross examine the witness through reputation or opinion (i.e., generally the prior bad acts of the witness cannot be used to impeach a witness. Yet, the party can impeach with prior bad acts of the witness on cross-examination), or

         2. Use extrinsic evidence (i.e., any evidence other than testimony given at this proceeding by the witness being impeached such as testimony of other witnesses, writings, prior statement of the witness who is not testifying) 

            1. Note that extrinsic evidence could be used for impeachment but not to prove the truth of the matter asserted **

      4. Types of Impeachment

         1. Impeachment by Contradiction

            1. Witness can be impeached with fact that contradicts his or her testimony 

            2. However, extrinsic evidence is inadmissible to contradict on a collateral matter (i.e., a fact not material to the issues in the case that says nothing about the witness credibility other than to contradict the witness)

         2. Impeachment by Prior Inconsistent Statement

            1. Generally, prior inconsistent statement can be used to impeach but not to prove the truth of the matter asserted

            2. However, if prior inconsistent statement is given under oath at a trial or a deposition (i.e., testifying before a court), the statement can be used to prove the truth of the matter asserted 

               1. As to CC, a prior inconsistent statement is a hearsay (i.e., out-of-court statement offered to prove the truth of the matter it asserts, which is usually disallowed as evidence in court. This will be explained in details later soon) if offered to prove the truth of the matter asserted. Yet, prior inconsistent statement is admissible to impeach all inconsistent statements of witness, whether or not the prior inconsistent statement is given under oath or not by witness, under hearsay exception (i.e., this will be explained in details later soon)

                  1. However, extrinsic evidence of prior inconsistent statement is inadmissible to impeach on a collateral matter 

                  2. As to foundation requirement under prior inconsistent statement, extrinsic evidence is only admissible if witness is given an opportunity to explain or deny before the introduction of the prior inconsistent statement in court ** 

            3. Impeachment with Evidence of Bias, Interest, or Motive

               1. As to foundation requirement, extrinsic evidence relevant to bias, interest, or motive is only admissible if witness is given an opportunity to explain or deny before the introduction of the prior inconsistent statement 

            4. Impeachment with Conviction of Crime involving Felonies

               1. Definition of felony: Crime punishable by prison term more than a year 

               2. Rule

                  1. All convictions for felonies of false statements (e.g., perjury, forgery, fraud, theft) are admissible

                  2. Balancing test (i.e., whether unfair prejudice outweighs the probative value by admitting the crime) is not needed except for crime convictions that are more than ten years 

                  3. Felonies that do not involve false statement (e.g., murder, robbery, rape) may be admissible to impeach but is subject to balancing test 

                  4. Extrinsic evidence can be used to prove the felony

                     1. As to CC, all felonies involving moral turpitude (i.e., an act or behavior that gravely violates the accepted standard of the community. For example, crimes of lying, violence, theft, extreme recklessness, and sexual misconduct) are admissible subject to balancing test 

            5. Impeachment with Conviction of Crime involving Misdemeanors

               1. Definition of misdemeanor: Crime punishable by a fine or a prison term not more than a year 

               2. Rule 

                  1. Conviction of misdemeanors that do not involve false statements are inadmissible

                  2. Juvenile convictions are inadmissible

                  3. Extrinsic evidence can be used to prove the misdemeanor

                     1. As to CC, misdemeanor convictions are admissible in criminal cases (i.e., not in civil cases) if the crimes involve moral turpitude **

            6. Impeachment with Non-Conviction Misconduct regarding Truthfulness 

               1. Rule

                  1. Acts of misconduct that did not result in a conviction are admissible to impeach in both civil cases and criminal cases if the acts involve deceit or lying 

                  2. Extrinsic evidence cannot be used to prove the non-conviction misconduct (i.e., generally cross-examination of the witness is used to prove the non-conviction misconduct) 

                     1. As to CC, non-conviction misconducts are admissible in criminal cases (i.e., not in civil cases) if the crimes involve moral turpitude 

​

  5. Hearsay

1. Definition: An out of court statement offered to prove the truth of the matter asserted, and the statement will be inadmissible unless it falls within the hearsay exception

   1. Note that under Proposition 8 in California, all non-privileged and relevant evidence is admissible in a criminal prosecution brought in California unless it falls within one of the specified exceptions to the rule. Evidence that is admissible under Proposition 8 is still subject to balancing test 

   2. Note that the statement could be both verbal and written **

2. Types of Hearsay

   1. Non-hearsay

      1. Definition: The out-of-court statement is not offered to prove the matter asserted

      2. Types of Non-hearsay

         1. Legally operative facts/Independent legal significance (e.g., words of contract, defamatory words, words of gifts)

         2. The statements to show the effect on listener (i.e., the statement is offered to establish awareness, etc. on the part of the listener)

         3. The statements to show the knowledge of the speaker 

         4. Circumstantial evidence (i.e., evidence not drawn directly from the fact but evidence inferred from the fact) to show the state of mind of a person **

   2. Hearsay Exemption

      1. Rule: Hearsay statements will be inadmissible unless they fall under one of the exemptions below

         1. Note that as to CC, no Exemption applies **

      2. Types of Exemption

         1. Admission 

            1. Definition of Admission: Any statement made by a party to a lawsuit (i.e., either before a court action or during a court action), which tends to support the position of the other side or diminish his or her own position

               1. Note that under admission, the statement is made by a party, and it is offered against that party by the opponent

            2. Types of Admission 

               1. Admission of a Party

                  1. The party against whom the statement is being offered is the declarant of that statement either personally or in a representative capacity. In this case, even if the statement is hearsay, the statement will be admissible **

               2. Authorized Admission

                  1. The statement is made by either by an authorized spokesman or spokeswoman of a party, or an employee within the scope of the employment and made during the employment relationship. In this case, even if the statement is hearsay, the statement will be admissible

               3. Adoptive Admission

                  1. The statement where the party is aware of and has indicated acceptance that the statement is true.  In this case, even if the statement is hearsay, the statement will be admissible

                  2. Admission can be by silence under Adoptive Admission if:

                     1. the party heard and understood the statement,

                     2. the party was physically and mentally capable of denying it, and 

                     3. a reasonable person would have defended himself or herself

                        1. That is, as long as the party was physically and mentally stable, the admission by silence will be admissible 

                           1. Note that the D being silent in the face of accusation by the police officer in a criminal case is not admission thus not admissible 

               4. Co-conspirator Admission

                  1. The statement is made while participating in, and in furtherance of conspiracy. In this case, even if the statement is hearsay, the statement will be admissible **

         2. Prior Statements

            1. Definition: An out-of-court statement from a declarant who is now testifying in court 

               1. Prior Inconsistent Statement

                  1. Prior statement that is inconsistent with the in-court testimony by the declarant and is given under oath in another trial or deposition. In this case, even if the statement is hearsay, the statement will be admissible

               2. Prior Consistent Statement

                  1. Prior statement that is made before the inconsistent statement was made (e.g., inconsistent statements are usually about fabrication or improper intent of the declarant)

                  2. Prior Consistent Statement is generally admissible after credibility of the declarant has been attacked for fabrication or improper intent related to the inconsistent statement

               3. Prior Identification Statement

                  1. Prior Statement that is made to identify a person, which is made after perceiving the person by a witness in the present trial (e.g., “that is the man or woman who committed the felony”) **

   3. Hearsay Exception

      1. Rule: Hearsay statement will be admissible under the Hearsay Exception

      2. Types of Hearsay Exception

         1. Hearsay Exception under Unavailability of the Declarant 

            1. Definition: Hearsay exception when the declarant (i.e., the person who stated the statement) is unavailable 

            2. Types of Unavailability of the Declarant

               1. The declarant is unavailable due to:

                  1. privilege (i.e., the court exempts the witness from testifying), 

                  2. death,

                  3. physical/mental illness,

                  4. absent (i.e., people related to the declarant cannot locate the declarant by process or reasonable means),  

                  5. refuse to testify despite the court order, or

                  6. lack of memory (i.e., as to CC, the person needs to have total memory loss in order be under unavailability)

      3. Types of Hearsay Exception under Unavailability of the Declarant

         1. Former Testimony 

            1. Former testimony given by the declarant in earlier proceeding or deposition is admissible if:

               1. the declarant is now unavailable,

               2. the party against whom the testimony is offered or their predecessor in interest was a party in the former action (i.e., as to CC, the party or their predecessor need not be in the former action, but needs to have similar interest in the former action) 

               3. the former testimony was given under oath during testifying or deposition, and

               4. the party against whom the testimony is offered had the chance to examine the declarant through direct or cross examination **

         2. Statement against Interest

            1. Statement against interest is admissible if:

               1. the declarant is now unavailable,

               2. the statement was against the financial interest of a party, or subject a party to criminal liability,

               3. the declarant must have personal knowledge that the facts are against a person, and  

               4. the declarant must have known that it was against the interest of a person when he or she made the statement at that time ** ​

         3. Declaration 

            1. Declaration is admissible if:  

               1. the declarant is now unavailable,

               2. the declarant made a statement in fear of his or her impending death, 

               3. the statement describes the cause of circumstances leading to the impending death, and  

               4. the statement is made in either a civil case or a criminal homicide case ​

                  1. Note that in order for the Declaration to be admissible generally the declarant does not need to be dead, yet in California the declarant must be dead for the Declaration to be admissible **  

         4. Personal or family history statement 

            1. Personal or family history statement is admissible if:

               1. the declarant is now unavailable,

               2. the declarant is a member of the family or immediately associated,

               3. previously made a statement concerning family relationship, and 

               4. the statement is based on the personal knowledge of the declarant 

      4. Hearsay Exception (Unavailability of the Declarant is irrelevant) ​

         1. Present state of mind statement

            1. Present state of mind statement is admissible if:

               1. the statement includes state of mind (i.e., intent to carry on his or her crime or a plan)

         2. Then-existing mental, emotional, or physical condition statement 

            1. Then-existing mental, emotional, or physical condition statement is admissible if:

               1. the statement includes emotional or physical condition (i.e., mental feeling, pain or bodily health) relevant to the crime at issue **

            2. Additional statements that involve mental or physical condition

               1. Past or present mental or physical condition made for medical diagnosis or treatment statement

                  1. Past or present mental or physical condition made for medical diagnosis or treatment statement is admissible if:

                     1. the statement is made to a person providing medical services, for purpose of medical diagnosis and treatment, describing the cause of the condition and its symptoms 

               2. As to CC, there is a 'Past or present mental or physical condition statement' which is admissible if:

                  1. the statement is made for medical diagnosis or treatment, and the case involves negligent (see Torts) **

         3. Present sense impression statement

            1. Present sense impression statement is admissible if:

               1. the statement describes or explains an event or a condition while the declarant was perceiving the event or the condition, or immediately right after perceiving the event or the condition

               2. as to CC, the statement must be explaining the “conduct of the declarant” while the declarant was engaged in that conduct 

                  1. Example) “the water feels cold/hot”, “you are driving fast/slow” (i.e., as to CC, because the statement must explain the conduct of the declarant, “I feel warm/cold”, “I am walking")

         4. Excited utterance statement

            1. Excited utterance statement is admissible if:

               1. the statement describes or explains a startling event or condition while the declarant was still under the stress of the excitement caused by the event or the condition 

               2. Example) “look out, the person has a gun”, “emergency 911 calls” **

         5. Record Statement

            1. Business record exception statement 

               1. Business record exception statement is admissible if:

                  1. a record (e.g., police report, medical report) of an event, condition, diagnosis, or viewpoint that are made in the regular practice of business, and are made at or near the time of the event, condition, diagnose or viewpoint described, by a person with personal knowledge of the facts 

                     1. Note that, however, even if the record complies with the standard above, the court will exclude the statement if it finds the record untrustworthy

         6. Public record exception statement 

            1. Public record exception statement is admissible if:

               1. the record of an event is made by and within the extent of the duty of the public employee, and is made at or near the time of the event

               2. the record describes activities and policies of an office (e.g., police manual); the record describes issues observed pursuant to duty imposed by law (i.e., however, unlike ‘business record exception statement’ above, police report in criminal cases are not admissible under this category. That is, public report is not admissible against a D in a criminal case, while it is admissible against a D in a civil case); or the record contains factual findings from investigation made pursuant to authority granted by law (i.e., in this case, the record of the cases involved must be a civil case or a criminal case where the D is the government)

               3. the record could be used to prove that the important content was not recorded 

               4. As to CC, public record is admissible against a D in both criminal case and civil case

                  1. Note that, however, even if the record complies with one of the standards above, the court will exclude the statement if it finds the record untrustworthy  **

         7. Judgment of previous felony conviction statement

            1. Judgment of previous felony conviction statement (i.e., usually a copy of conviction of the D) is admissible if:

               1. the statement of the D is needed to prove any fact essential to the judgment "against the D", or 

               2. the statement of the D could be used to prove any fact essential to the judgment "against another person" for impeachment purpose   

         8. Residual exception

            1. Definition: A hearsay statement that is not otherwise covered by all the above exceptions could be admissible under Residual exception

               1. As to CC, there is no residual exception ​

            2. Factors

               1. Hearsay statement that is not otherwise covered by the all the above exceptions could be admissible under Residual exception if:

                  1. the statement is trustworthy (i.e., whether the statement is trustworthy will be determined under the totality of circumstances (i.e., a way to analyze where decisions are based on all available information rather than bright-line rule (i.e., a clearly defined rule, which gives little or no room for different interpretation). Namely, the decision whether to admit the hearsay statement or not depends on all the circumstances of a particular case, rather than any one factor), and 
                  2. notice is given to the adversary party, who is involved in the case, that the hearsay statement could be admitted​ **

   4. Confrontation Clause (Repeat in Criminal Procedure & Evidence)  

      1. Definition

         1. Confrontation Clause provides that ‘in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her.’ This procedural guarantee applies to both federal and state prosecutions

         2. Rule

            1. Confrontation Clause & Testimonial Hearsay Statements

               1. Testimonial hearsay statements made to the police may be used at trial only if (a) the declarant (i.e., the person who has stated the statement) has become unavailable, and (b) the D has had a prior opportunity to cross-examine the accuser who is against the D

                  1. Note that if a statement is not hearsay at all, Confrontation Clause will not apply

               2.  Definition of Testimonial Hearsay Statements

                  1. A testimonial statement is one that looks like the kind of testimony that would be offered at trial in aid of prosecution: it identifies the D, accuses the D of wrongdoing, describes the circumstances of the crime, and establishes elements of the offense

                  2. Example of Testimonial Hearsay Statements

                     1. Hearsay statements by victims and witness describing the conduct of the D, made to police after the emergency situation has past and the investigation has begun, are testimonial; Depositions, affidavits, transcripts of prior testimony, and other formalized statements are testimonial if it is done after the emergency situation has past and the investigation has begun; Police investigative records, such as lab reports of drug tests, are testimonial if it is made after the emergency situation has past and the investigation has begun

                        1. Note that emergency 911 calls, which are made to seek help during an emergency situation, are usually not testimonial; and statements to police about the identity, type of vehicle, and state of mind of the D that will assist the police in resolving a current emergency situation where the D is still at large are not testimonial **

​

  6. Authentication  

1. Authentication

   1. Definition of Authentication in the context of Evidence: Proof of evidence in order to prove that the item of the evidence is what the party claims it to be. That is, before any documents or other types of recordings are entered into evidence, they must be authenticated and the proper foundation must be laid

   2. Rule

      1. How to authenticate and lay a proper foundation as to the item:

         1. there needs to be a testimony of a witness that 

            1. the item is what the party claims it to be, and

            2. the item has been held in an unbroken chain of custody, or the item must be in the same condition at trial (i.e., if the condition of the item is an important issue) 

               1. Note that a ‘chain of custody’ of an item is the witnessed, written record of all of the individuals who retained unbroken control over the items of evidence. It establishes the proof that the items of evidence collected at the crime scene is the same evidence that is being presented in the court. Generally, it is considered important to preserve the chain of custody to conserve the integrity of the evidence and prevent it from contamination, which can alter the state of the evidence

               2. Thus, from the time it is collected until it appears in court, an item of evidence must always be in the physical custody of an identifiable, legally-authorized person. The chain of custody in a criminal case might be (a) a police officer collects a gun at the crime scene and places it in a sealed container, (b) the police officer gives the gun to a police forensic technician, (c) the forensic technician removes the gun from the container, collects fingerprints and other evidence present on the weapon, and places the gun along with the evidence collected from it back into the sealed container, (d) the forensic technician gives the gun and related evidence to a police evidence technician, and (e) the evidence technician stores the gun and the related evidence in a secure place and records everyone who accesses the evidence during the investigation until final disposition of the case

   3. Types of Written Evidence that Needs Authentication

      1. Autograph

         1. The authenticity of an autograph will be established through:

            1. admission (e.g., the person who wrote the autograph will admit that the autograph is his or hers) 

            2. witness testimony (e.g., the witness will admit he or she saw the D write the autograph)

            3. expert opinion (e.g., let the experts compare the autograph with the authentic example writing of the D) 

            4. lay opinion (e.g., lay witness has seen the D sign his or her name elsewhere and states the disputed autograph is the D)

            5. circumstantial evidence (e.g., evidence of facts that the court can draw conclusions from) (e.g., a letter the P received where the autograph of D is in)

            6. an authentic exemplar (i.e., generally, the juries get to compare and decide the authentic exemplar) **

      2. Writing as Self-Authentication 

         1. Definition: Any document that can be admitted into evidence at a trial without proof whether the document could be admitted or not

         2. Types of self-authenticated writing: certified copies of public documents (e.g., deed, will); acknowledged documents (e.g., notary); official publications (e.g. government pamphlet); newspapers; periodicals; business records; trade inscriptions 

            1. Note that as to CC, business records and trade inscription are not considered as self-authenticated

      3. Ancient Document

         1. Rule: The authenticity of an ancient document rule will be established if:

            1. the document is at least 20 years,
            2. the document was found in a place of natural custody (i.e., where a reasonable person would expect the documents to be found), and 
            3. the document does not on its face present any irregularities **

   4. Types of Physical Evidence that Needs Authentication

      1. Photo

         1. Rule

            1. The authenticity of a photo depends on whether the pertinent part of the photo could reasonably and accurately represent the time of the incident 

            2. Witness must testify that the photo fairly and accurately depicts the particular scene

            3. Any witness, with personal knowledge (i.e., the photo looks like what the person remembers) of the view, may authenticate the photo (i.e., a person does not have to be the person who actually took the photo, unless the witness needs to testify when the photo was taken)

            4. If no witness is found to authenticate the photo, evidence may be admitted if the camera was properly functioning and the photo was actually from that camera the witness took at the time of the incident 

      2. Technological Device 

         1. Rule

            1. The authenticity of a technological devise (e.g., the result of an X-ray, CT scanner) is based on the chain of custody demonstrating that the results of the technological devices are accurate 

               1. Note that a ‘chain of custody’ establishes the proof that the items of evidence collected at the crime scene is the same evidence that is being presented in the court

            2. In order for the technological device to be admitted into the court, the person who is trying to introduce the technological device must prove that:

               1. the technological device, which was in good function at the time of the examination, was examine by a qualified expert, and 

               2. there was no or little break in the chain of custody 

      3. Non-Unique Items 

         1. Rule

            1. The authenticity of a non-unique items is based on the chain of custody demonstrating that the non-unique item (i.e., bag of cocaine, gun) is the item the witness claims it to be (i.e., a little of break in the chain of custody is permissible, which depends on the circumstances)  

               1. Note that a ‘chain of custody’ establishes the proof that the items of evidence collected at the crime scene is the same evidence that is being presented in the court. Generally, it is considered important to retain the chain of custody to preserve the integrity of the evidence and prevent it from contamination, which can alter the state of the evidence

               2. Thus, from the time it is collected until it appears in court, an item of evidence must alwaysbe in the physical custody of an identifiable, legally-authorized person. The chain of custody in a criminal case might be (a) a police officer collects a gun at the crime scene and places it in a sealed container, (b) the police officer gives the gun to a police forensics technician, (c) the forensic technician removes the gun from the container, collects fingerprints and other evidence present on the weapon, and places the gun along with the evidence collected from it back into the sealed container, (d) the forensic technician gives the gun and related evidence to a police evidence technician, (e) the evidence technician stores the gun and the related evidence in a secure place and records everyone who accesses the evidence during the investigation until final disposition of the case

      4. Verbal Record 

         1. Rule              

            1. The authenticity of a word record of a person depends on whether the person remembers the voice of a person accurately 

            2. The voice could be authenticated if the person recognizes the voice of a person accurately and heard the voice at any time during the process of litigation 

            3. The telephone conversation of a voice could be authenticated by a witness if the witness (a) recognizes the unique voice of the person, and (b) could prove that the witness dialed a particular number and the person answered was the person that is to expect to answer **

​

  7. Best Evidence Rule

1. Definition of Best Evidence rule: A legal doctrine that "the first initial piece of evidence", particularly  a document, is  preferable to "a copy or a duplicate" of the first initial piece of evidence. That is, if the first initial evidence is available, a copy or a duplicate will not be allowed as evidence  in a trial

   1. Types of Evidence that can be Admitted to Prove the Content of the Writing under the Best Evidence Rule 

      1. First initial writing: Tangible collection of data (e.g., printout documents, certified copies of public documents,  x-rays, computer disks)

      2. Copy or duplicate of first initial writing: Photocopy or photo

         1. Generally, a copy or duplicate will be offered to prove the contents of the writing if:

            1. the first initial document is lost or destroyed, unless there was a bad faith involved (i.e., a party purposefully destroyed or lost the first initial document),

            2. the first initial document is in the possession of another party that is unattainable,

            3. the first initial document is in the possession of an adversary party who fails to produce the document, or

            4. the document is not a written document (As to CC, the document that is written could be admissible under the Best Evidence Rule)

               1. Note that voluminous documents could be recapped and be admitted, if the first initial documents that is related to the voluminous documents are available for inspection

      3. However, if there is a genuine question as to the authenticity of the first initial writing, the copy or duplicate will also not be admissible unless the question as to authenticity is resolved 

2. Rule

   1. The best evidence rule generally applies where evidence is offered to prove the content of the writing and the first initial writing is required 

   2. When a party cannot produce the first initial content of the writing, the party must account for why the first initial writing cannot be produced 

   3. If the reason of the party, why the party cannot produce the first initial content of the writing, is acceptable, the court will proceed for the jury to decide if the copy or the duplicate is admissible 

   4. The  jury will first decide whether the first initial writing ever existed:

      1. if it did exist, the jury will look into whether the writing produced is actually the first initial

      2. if it did not exist, the jury will look into whether the copy or the duplicate accurately reflects the first initial writing

3. Exception to Best Evidence Rule 

   1. Testimony as to Personal knowledge: Testimony of a witness that is in writing is generally admissible as public documents under the best evidence rule, however, in the case where a witness testifies about which he or she has personal knowledge about an issue, and that just happens to be in a tangible collection of data, the best evidence rule does not apply  

   2. Public records: Certified public records are not within the best evidence rule

   3. Collateral issue: If the writing is about a collateral issue (i.e., an issue that is not directly related to important issue of a case), there is no need to introduce a document in the first place, thus the best evidence rule does not apply **