Sunday, December 17, 2006

The LLS 2006 Fall Evidence Discussion

Pursuant to a request, I am starting a discussion for Evidence. Unlike the discussion for Con Law 2, I am starting this before my outline is completed. There are enough readers that know enough about different parts of the subject to help each other out. Further, consider this a gathering place, a bulletin board, for students to trade information on helpful suggestions. Because Loyola Law School has the most helpful students!

Update: (2006.12.18.01:50 PST) Goldman students: Here are notes from the review he had on Monday 4 December:

Agency theory
If the only evidence you have to support a theory of agency is the fact that the agent declared himself an agent, that is not admissible in any jurisdiction to prove its point; however, in federal court, if it has been admitted for other purposes, it is admissible as partial proof of agency

Present recollection refreshed vs. past recollection recorded
When can something be read into evidence, and when can it not? You can read into the record a past recollection recorded; if it is a present recollection refreshed, the refreshing document may not be read into the record on direct examination. A present recollection refreshed does not qualify as a past recollection recorded because one of the elements of a past recollection recorded is missing: that the person does not remember.

State of mind
California requires, for past state of mind, that the declarant is unavailable, and that there is high degree of trustworthiness (that the statement was what the declarant believed).

In the chart on state of mind, there is a mistake. Where it talks about “future conduct by someone other than declarant”, change CEC 1251(b) to CEC 1250(b). Actually, scratch it out. It should be “yes, according to case law”.

You always have to authenticate. For example, a business record needs to be authenticated before you can even object to it as hearsay, much less claim an exception for business records. If a witness does not authenticate a writing as hers, you can still authenticate in some other way, for example by using a handwriting expert.

Prior convictions
California doesn’t follow a strict collateral rule like the federal courts. California pretty much only goes by CEC 352, so it’s a case-by-case determination.

Attorney-client privilege
Gossip is not included.

Prior inconsistent statements
California seems to have the most flexible rules, allowing a court to keep a witness on call after examination. This may consume a lot of time, but California is more concerned with fairness.

Statements identifying a person
If a witness has identified a person, but subsequently claims not to remember, is that a consistency issue? Is there a problem with the prior identification? There is no problem; in fact, if the identification has been made, there’s no point to try to establish the identification again. By the way, there is no requirement that the prior identification have been made under oath.

Prior consistent statements
In federal rules and common law, there is only one trigger—an allegation of “recent fabrication”; in California, there are two triggers—an allegation of “recent fabrication” and prior inconsistent statement.

Best evidence rule
If a doctor looks at an X-ray and also determines from other methods that his patient had a broken leg, is his testimony that the patient had a broken leg admissible? It may be. In order to exclude this, we’d have to isolate his diagnosis to the X-ray alone, triggering the best evidence rule.

Do they have to be to the other party? No, they can be to anybody.


Anonymous said...

For someone in Williams Class- for the H/NH portion of the exam- would an admission count as H? He told us not to apply any of the exceptions/exemptions . . .

Bruce said...

If you're not to apply exemptions, then it would still be hearsay. If you're not to apply exceptions, but exemptions are okay, then it depends on if you're in Federal (exemptions and exceptions) or CA (exceptions only) court.

I'm guessing that the H/NH portion of the exam would be like the Morgan Test, which if I remember correctly is usually introduced just before covering hearsay exceptions (and exemptions).

Anonymous said...

what is hearsay?

mike smith

Bruce said...

Haha, Mike!

"Hearsay is an out of court statement offered to prove its truth." -- Stanley Goldman

Anonymous said...

Hi Bruce:
Great idea! I was wondering if anyone has an idea about the mix of Questions on Goldman's test. For instance, can we expect true false questions? And does anyone know the general ratio of fed to CA to common law questions?

Bruce said...

Based on the one time I asked Goldman about the exam, it does not seem that there will be true/false questions. I'm not sure how prevalent common law will be, but I expect at least a couple of questions will touch upon it.

If anyone else has more information about the Goldman exam, please share with your fellow students. :)

Anonymous said...

Thanks for doing this Bruce. I have had this question for the past week and didn't know who to ask.

My question is about Confrontation Clause and hearsay (I'm in Goldman's class) -- If a non-testimonial hearsay statement is offered against a criminal defendant, does it come in as long as an exception applies or are there other requirements?

In my notes, I wrote that all that was required was a proper hearsay exception, but some of the commercial outlines I consulted indicated differently.


Jessica Scoles

Bruce said...

Jessica, I believe what happens is that first you must escape Confrontation analysis. In your question, the assumption is that the declaration is non-testimonial.

The next step is to find a hearsay exception. If one cannot be found, analyze under FRE 807, which covers residual exceptions. Briefly, the elements of FRE 807 seem to be:

1. Circumstantial guarantees of trustworthiness comparable to those in Rules 803 and 804.

2. Adverse party has notice of and opportunity to prepare for the intent to offer, and the particulars of the evidence.

3. The evidence is on point to a material issue, is more probative than prejudicial, and the interests of justice require its admission.

In essence, FRE 807 explains the rationale behind hearsay exceptions. The case you're thinking of, Davis v. Washington, is used primarily to highlight Justice Scalia's distrust of police. In class, Goldman noted that Scalia was obsessed about the case against Sir Walter Raleigh, explaining this aversion to testimonial statements.

Hope that answers your question!

Anonymous said...

i believe that if you have a non-testimonial hearsay exception, you'd apply the Ohio v. Roberts test that requires (1) Unavailability and (2) and indicia of reliability - and i believe that a proper hearsay exception would meet that requirement. :)

Bruce said...

Ohio v. Roberts may no longer be good law. Moreover, "indicia of reliability" is only for exceptions that aren't "firmly rooted". It's still just unavailability and trustworthiness for exceptions that are "firmly rooted", if I remember correctly.

Anonymous said...

you are right that Ohio v Roberts *may* not be good law, but has not been explicitly overturned - the court has left it open. The only thing we *do* know is that for testimonial hearsay statemnts the ONLY "indicia" that would be realiable is actual confrontation - ie: opportunity to x-ex.

As to what is left - well - we don't truly know. I said that you'd use the Ohio test becuase the definition of "incicia of reliability" has changed - it's no longer the "firmly rooted" definition that Ohio used...but the test still works. What is reliable for non-testimonial statements? Probably all hearsay exceptions. At least that's how I look at it.

Whatever works :)

Bruce said...

Based on a conversation during office hours today, which I'm going to check on, FRE 807 seems to be the way to structure an exception these days. And you're right, trustworthiness, even as a term of art, isn't the sine qua non of a hearsay exception. In fact, only a few exceptions require it. I didn't have scratch paper so I didn't write it down.

Anonymous said...


Does anyone know the CEC rule for admissibility of unconvicted prior offenses for impeachment?

My notes have that C/L allowed any past illegal or immoral act and FRE allows prior unconvicted acts subject to 403 if limited to showing untruthfulness. What's the CEC stance?

Much obliged!

Bruce said...

CEC for prior unconvicted bad acts:

CEC 786 says that character evidence that does not go to honesty or dishonesty is not admissible.

CEC 787 says that specific acts that are relevant *only* to the witness' honesty or dishonesty.

CEC 788 deals specifically with felonies, but you're not asking about that.

This means that if there's evidence that someone has a habit of lying or exaggerating, that would be admissible. Specific incidences of lying or exaggeration are not admissible, however, because they are probably relevant only to the witness' honesty or dishonesty.

Does that help?

Anonymous said...

Yeah, I think that does help...

So, essentially, in CA, you cannot impeach a witness with unconvicted prior bad acts?

Bruce said...

It would be difficult, yes. If other readers can think of an example of a prior unconvicted bad act that goes beyond a propensity for honesty or dishonesty, I'm all ears (and eyes).

Anonymous said...

Thanks for everyone's feedback on my question and good luck on the exam today.