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Santa Clara University School of Law
Peterson, Robert W.


A. Standard
1) Does it make any fact that is of consequence in determining the outcome, more or less
If YES–) Relevant (Very Low Standard)
(1) Need not be in dispute to be relevant (ie background info) this would
come out on a 403 analysis.
(2) Question to be decided by judge based on preponderance
California:Does describe relevance in terms of disputed fact
2) Conditional relevance?
(1) If relevant judge decide whether a reasonable jury could conclude that such facts occurred then if so, and its probative it is admitted.
(2) Document Authentication
Needs to be enough evidence that a reasonable jury could conclude that
the evidence introduced is what the proponent says it is.
EX: GE Lightbulb case. Found at scene where limited access and normally old lightbulbs were not kept around. Judge decides reasonable jury could conclude this is what he says it is. Chain of custody disputes are for a jury.
EXC: No Need to Authenticate-
(1) Public documents or public records
(2) Public issued documents like official publications
(3) Printed material like newspapers or periodicals
(4) Business records covered in 803-6
B. Exclusion based on prejudice or waste of time
1) Relevant evidence can be excluded if probative value is substantially outweighed by
(titled toward admission) :
(1) Prejudice
(2) Confusion of issues
(3) Misleading jury
(4) Undue delay, cumulative evidence


A. HEARSAY-Out of court statement introduced for the truth of the matter asserted
1) Is it an assertion?
Need a written or oral assertion or substitute for oral conduct (“signal”)
If NO–) Not Hearsay
2) Is it an out of court statement?
If NO–) Not Hearsay
3) Is it introduced to prove the truth of the matter asserted?
If NO–) Not hearsay (ie offered for impeachment, independent legal significance)
Examples of Things Not Introduced for TMA

4) If hearsay does an exception apply that will make it admissible?
I. Does Not Matter If Declarant is Available
a) Admission by Party Opponent–Party and Other Side Seeks to Introduce”Standard could reasonable jury conclude”
“Your” statement.
(1) There is a direct/represent. admission + opposing party wants it in
Party to lawsuit or his representative (attorney) says it
(2) There is an adoptive admission + opposing party wants it in
Party manifests or adopts belief in statement’s truth
Can do by words or conduct–ie you say ok its in our books
Silence as adoption? Unclear.
(3) There is adoption through agency + opposing party wants it in
The statement is made by an employee or agent made during course of employment and within the scope of employment introduced against
his employer
California: Tougher standard. Only in if party (employer often) would be liable under agency theory (respondeat superior)
IE: Employee crashes work car, oh my fault–its in.
Employee says oh y

h Hillman in Arizona
California: Any suggestion of lack of reliability it is out
f) Made a statement for purpose of medical diagnosis
(1) Need not be made to a doctor or nurse–more broad
(2) Need not be made by party injured (friend , parent , others ok)
(3) Must be reasonably pertinent to diagnosis or treatment
Ex: I got hit by a car mom my leg hurts is ok.
But not, I got hit by a car that ran a red light so my leg hurts.
Note: Some courts say identify of abuser or attacker might come
in if domestic or rape bc it is part of treatment process
California: Does not have this exception. Try to admit
under state of mind/phy condition but would only cover declarant statement about declarant own condition. Not condition of others. Also 1370 lets statement re: abuse
or threats of abuse might get it in
Add’l req. no lack of trustworthiness.
**Only applies if declarnt unavailable**
g) Recorded Recollection
(1) WITNESS made the document or statement
(maybe under their direction)
(2) Now is present and cant remember enough to testify fully
(3) Memo or record can be read into evidence but not received as
exhibit unless introduced by adverse party