Subject outline

Evidence (Federal and California)

13 core rule statements and a 1066-line detailed rule bank, organized the way the California Bar tests them.

• Relevance

  Evidence is relevant if it has any tendency to make a consequential fact more or less probable.

  Elements / Factors

  1. 1Probative tendency.
  2. 2Fact of consequence under substantive law.

  Exceptions / Limitations

  • •Relevant evidence may be excluded when probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, undue delay, or cumulative presentation.

  California distinction

  • California Evidence Code section 352 uses substantially-outweighed balancing similar to Federal Rule 403.

• Character Evidence - Civil Cases

  Character evidence is generally inadmissible to prove conduct in conformity in a civil case.

  Exceptions / Limitations

  • •Character may be an essential element of a claim or defense.
  • •Other-acts evidence may prove motive, intent, identity, absence of mistake, plan, knowledge, or another nonpropensity purpose.
  • •Impeachment rules separately permit specified character evidence.

  California distinction

  • California Evidence Code section 1101 states the propensity bar and noncharacter purposes.

• Defendant’s Character in Criminal Case

  A criminal defendant may offer evidence of a pertinent character trait, opening the door to prosecution rebuttal.

  Elements / Factors

  1. 1Pertinent trait.
  2. 2Proper form: reputation or opinion under federal law.
  3. 3Witness has adequate basis.

  Exceptions / Limitations

  • •On cross-examination, the prosecutor may ask about relevant specific acts to test the character witness’s basis, but ordinarily may not prove them extrinsically solely for that purpose.

  California distinction

  • California generally permits opinion and reputation character evidence and has statutory propensity exceptions, including specified sexual-offense and domestic-violence evidence, subject to section 352.

• Hearsay

  Hearsay is an out-of-court statement offered to prove the truth of what it asserts.

  Elements / Factors

  1. 1Statement: oral, written, or intended nonverbal assertion.
  2. 2Made outside the current proceeding testimony.
  3. 3Offered for truth.

  Exceptions / Limitations

  • •Not hearsay when offered for effect on listener, notice, legal effect, verbal act, impeachment, or circumstantial state of mind.
  • •A statement may be admissible for one purpose with a limiting instruction.

  California distinction

  • California defines hearsay similarly but treats several federal “nonhearsay” categories as hearsay exceptions.

• Party-Opponent Statement

  A statement offered against an opposing party is admissible when made by the party, adopted, authorized, made by an agent within scope during the relationship, or made by a coconspirator during and in furtherance.

  Elements / Factors

  1. 1Offered against opposing party.
  2. 2Statement fits a recognized party category.
  3. 3For agents, scope and timing; for coconspirators, conspiracy, membership, and during/in-furtherance requirements.

  Exceptions / Limitations

  • •No personal-knowledge or against-interest requirement.
  • •The statement alone cannot always establish agency or conspiracy foundational facts.

  California distinction

  • California calls these admissions and applies statutory categories; a party’s own statement is an exception rather than federal nonhearsay.

• Former Testimony

  Former testimony is admissible when the declarant is unavailable and the opponent had an opportunity and similar motive to develop the testimony.

  Elements / Factors

  1. 1Unavailable declarant.
  2. 2Testimony at trial, hearing, deposition, or qualifying proceeding.
  3. 3Opportunity to examine.
  4. 4Similar motive.
  5. 5Same party or qualifying predecessor in interest where required.

  Exceptions / Limitations

  • •Criminal confrontation requirements independently apply.

  California distinction

  • California’s former-testimony exception contains detailed party and interest requirements under Evidence Code sections 1290-1292.

• Statement Against Interest

  An unavailable declarant’s statement is admissible if, when made, it was sufficiently contrary to pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true.

  Elements / Factors

  1. 1Unavailability.
  2. 2Personal knowledge.
  3. 3Against qualifying interest when made.
  4. 4Reasonable-person reliability.
  5. 5Corroboration for statements exposing declarant to criminal liability when offered to exculpate accused under federal law.

  Exceptions / Limitations

  • •Collateral neutral or blame-shifting portions may be severed.
  • •Distinguish party admissions, which require no unavailability.

  California distinction

  • California also recognizes statements risking social disgrace in circumstances specified by Evidence Code section 1230.

• Excited Utterance

  A statement relating to a startling event is admissible if made while the declarant was under stress of excitement caused by the event.

  Elements / Factors

  1. 1Startling event.
  2. 2Statement relates to event.
  3. 3Declarant remained under stress without reflective fabrication.

  Exceptions / Limitations

  • •Time is relevant but not dispositive; ongoing stress can extend the period.

  California distinction

  • California calls this the spontaneous-statement exception and emphasizes nervous excitement dominating reflective powers.

• Present Sense Impression

  A statement describing or explaining an event is admissible when made while or immediately after perceiving it.

  Elements / Factors

  1. 1Personal perception.
  2. 2Description or explanation of event.
  3. 3Contemporaneous or immediately thereafter.

  Exceptions / Limitations

  • •Memory or narrative after meaningful reflection is insufficient.

  California distinction

  • California’s contemporaneous-statement exception is narrower and requires the statement to explain, qualify, or make understandable the declarant’s conduct while engaged in that conduct.

• Business Records

  A business record is admissible if regularly created and trustworthy.

  Elements / Factors

  1. 1Record of act, event, condition, opinion, or diagnosis.
  2. 2Made at or near time by, or from information transmitted by, someone with knowledge.
  3. 3Kept in regularly conducted activity.
  4. 4Making the record was regular practice.
  5. 5Qualified custodian testimony or certification.
  6. 6Opponent does not show untrustworthiness.

  Exceptions / Limitations

  • •Each hearsay layer must independently qualify.
  • •Records prepared primarily for litigation may lack regularity or trustworthiness.

  California distinction

  • California requires a custodian or qualified witness to establish identity, mode and time of preparation, regular course, and trustworthiness.

• Authentication

  The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims.

  Elements / Factors

  1. 1Identify the item and claimed nature.
  2. 2Provide witness knowledge, distinctive characteristics, chain of custody, process evidence, comparison, certification, or other foundation.

  Exceptions / Limitations

  • •Self-authenticating items require no extrinsic foundation but remain subject to hearsay and other objections.
  • •Gaps in chain generally affect weight unless they create serious substitution concerns.

• Best Evidence Rule

  To prove the content of a writing, recording, or photograph, the original or an admissible duplicate is generally required.

  Elements / Factors

  1. 1Proponent seeks to prove content.
  2. 2The item is a writing, recording, or photograph.
  3. 3Original, duplicate, or valid excuse for secondary evidence.

  Exceptions / Limitations

  • •Rule does not apply when a witness testifies from personal knowledge independent of the item.
  • •Secondary evidence is permitted if original lost without bad faith, unobtainable, controlled by opponent after notice, or collateral.

  California distinction

  • California’s secondary-evidence rule generally permits otherwise admissible secondary evidence unless exclusion is required by statute or fairness concerns, rather than using the federal original-first formulation.

• Attorney-Client Privilege

  Confidential communications between attorney and client made for legal advice are privileged.

  Elements / Factors

  1. 1Attorney-client relationship or consultation.
  2. 2Communication.
  3. 3Confidential intent and reasonable precautions.
  4. 4Purpose of seeking, obtaining, or providing legal advice.
  5. 5Privilege claimed by holder and not waived.

  Exceptions / Limitations

  • •Crime-fraud, disputes between attorney and client, joint-client disputes, and claimant-through-client exceptions may apply.
  • •Underlying facts are not privileged merely because communicated.

  California distinction

  • California privilege is statutory and generally absolute once established, subject to enumerated exceptions; California does not use a broad judicial balancing exception.