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Santa Clara University School of Law
Kreitzberg, Ellen S.

·         Evidence – Spring 2010 – Professor Kreitzberg
·         Types of Evidence
o    Direct: Evidence that involves no inferences. This includes real evidence or witness’ testimony.
o    Circumstantial: Evidence that requires an inference based on indirect evidence.
o    Real/Demonstrative: Physical evidence relating to the matter, it may be direct or circumstantial.
o    Testimonial: In-court testimony by a witness
o    Documentary: Written or recorded evidence relating to an event or fact.
·         Relevance
o    FRE 401 Relevancy:(1) Must help in some minimum way to establish the fact or proposition it sets out to prove AND (2) That fact must under the controlling substantive law have something to do with the outcome of the case.
§ CA 210: evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.
§ CA 351: Except as otherwise provided by statute, all relevant evidence is admissible.
oFRE 403 Discretionary Exclusion (CA 352 – same): Otherwise relevant evidence may, at the judges discretion, be excluded if its probative value is substantially outweighed by the danger of one of the following: (1) Unfair prejudice; (2) Confusion of the issue; (3) Misleading the jury; (4) Undue delay; or (5) Cumulative evidence.
o    FRE 105 Limiting Instructions (CA 355 – same): Evidence is admissible as to one party or purpose and is inadmissible for another. The court UPON REQUEST shall instruct the jury accordingly.
·         FRE 407-411 Mandatory Exclusions
o    FRE 407 Subsequent Remedial Measures (SRM) (CA 1151 – different): Evidence of actions taken by a party after an event to “fix” the cause of the event cannot be used to prove negligence, culpable conduct, or defect. Includes changes in design, installation of protective devices, new warnings, revision in contracts, changes in policies, discipline of employees, and instruction to take measures.
§ SRM for proving Strict Liability
§ FRE: Cannot use SRM to prove strict liability
§ CA Difference: Can use SRM to prove strict liability.
§ Note: SRM do not include tests, reports (even if they lead to adoption of measures), ordinary course of business, third party repairs, or involuntary measures (i.e. government mandate).
§ Note: Evidence of SRM is NOT EXCLUDED under 407 for other RELEVANT purpose of Ownership, Control, Feasibility (if controverted), or Impeachment
o    FRE 408 Compromise (CA 1152 and 1154)
§ FRE CIVIL CASES: Not admissible to prove liability, invalidity of claim or amount of damage.
§ EXCEPTION: rule not applicable to discoverable evidence, or evidence admitted for the purpose of Bias, Prejudice, Notice or to Prove obstruct criminal investigation, OR WHEN OFFERED IN CRIMINAL CASES
·         Can be offered to prove ownership, control, feasibility or to impeach
o    FRE 409 Offer to pay hospital or medical expenses: A naked offer to pay hospital or medical expenses is inadmissible to prove liability. However, admissions of fact or liability made in conjunction with an offer are admissible.
o    FRE 410 Settlement offers, admissions of facts during attempt to compromise, and withdrawn guilty pleas are all inadmissible if:
§ There is a claim of intent to bring a claim at the time of the offer; AND
§ There is a dispute as to either liability or amount in dispute.
§ Note: Applies to pleas in state or federal court, pleas tendered but not accepted, pleas set aside on collateral attack, statements to Prosecutor, pleas later withdrawn, nolo contender pleas, and statements made in plea proceeding.
§ ALTERNATIVE USE: Pleas and offers to plead under FRE 410 are admissible for impeachment or to prove perjury.
o    FRE 411 Evidence of liability insurance (CA 1155 – same): The existence of liability insurance may not be used to show fault or ability to pay.
§ ALTERNATIVE USE: It may be used to show proof of agency, ownership, control, bias or prejudice.
o    RECAP
§ Settlement Offers and factual statements made during settlement negotiations are NOT ADMISSIBLE to prove liability, invalidity of claim or amount of damage.
§ May be admissible for other purpose such as witness bias, lack of undue delay or obstruction of criminal investigation
·         FRE 403-404 Character Evidence
o    FRE 404(a) (CA 1101(a)) In general, character evidence is inadmissible to prove a person acted in conformity therewith.
o    Character traits: Truthfulness, violence, honesty, law abindingness, aggressiveness
o    FRE 404(a) CIVIL TRIALS:
§ FRE (CA 1101(a) same) Admissible when character is the ultimate issue. May be proved by opinion, reputation, or specific acts. E.g. Slander, libel, defamation, negligent entrustment or supervision, child custody, wrongful death (loss of consortium, future earnings). Entrapment = only in criminal scenario.
§ Where knowledge of the character of another is in issue: Reputation, opinion, or specific acts are admissible to prove that one person knew or should have known of the character of another in such cases as negligent entrustment or self-defense.
§ FRE 415 Evidence of similar acts in CIVIL cases concerning sexual assault and child molest: Evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible.
§ Evidence of the victim’s prior sexual acts 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 been placed in controversy by the alleged victim.
§ CA 1106 – difference – Sexual harassment, sexual assault, opinion or reputation evidence of victim’s sexual conduct is inadmissible except on cross-examination: In a CIVIL ACTION, this type of evidence is not admissible by the defendant to prove consent by the plaintiff. However, if the P introduces evidence or their witness gives testimony relating to the plaintiff’s sexual conduct, then the D may cross examine the witness giving the testimony and offer relevant evidence specifically limited to rebuttal of evidence presented by the Plaintiff.
§ Admissible when character is the ultimate issue: May be proved by opinion, reputation, or specific acts. (E.g. Entrapment)
§ FRE 404(a) Admissible when defendant uses it to prove good character: A defendant may introduce evidence of his own good character, or the bad character of the victim, when it is relevant to the defense. If D puts character at issue, the prosecution can put on evidence to rebut.
§ CA 1102 and FRE: only allowed in the form of opinion or reputation.
§ FRE 404(a) Admissible when prosecution uses it to rebut defendant’s character evidence: If the defendant introduces character evidence (of his own good character, or the bad character of the victim), the prosecution may rebut by showing the good character of the victim or bad character of the accused. This is limited to the character trait D testified or put on evidence about.
§ The prosecution may not initially show the defendant’s bad character trait(s) for the inference that he is more likely to have committed the crime charged. (Prosecution cannot introduce in their case-in-chief).
§ HOMICIDE EXCEPTION: FRE 404(a)(2) Character of victim offered by accused: (subject to limitations of FRE 412) Evidence of a pertinent character trait 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 prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor is admissible.
§ FRE: Can use only opinion or reputation.
·         CA 1103 – difference: In a CRIMINAL ACTION, evidence regarding the character of the victim can be introduced in the form of reputation, opinion, or specific act ONLY by the defense:
o    By the defendant to prove conduct of the victim in conformity with the character
o    By the prosecution to rebut bad character of V with bad character of D.
o    Neither of the parties can offer that the victim was dressed to go to the issue of consent unless the Ct has determined that to be relevant. This does not include the condition of the victims clothing before, during, or after the incident.
§ FRE NOTE: In the case of homicide self-defense claim, prosecution may introduce of evidence of peacefulness first, but may only use opinion or reputation.
·         CA NOTE: In CA, prosecution cannot introduce V’s peacefulness in case-in-chief, even if it is a homicide case.
·         CA NOTE: can use any specific acts against victim.
o    Methods of Proving Character:
§ FRE 405(a) Opinion and reputation (CA 1102(b) – same): In all instances, character may be proved by testimony as to reputation or opinion.
§ FRE 404(a): when cross-examining the character witness, may ask questions about specific acts for limited purpose of testing the W’s basis of knowledge.
§ FRE 404(b) Specific instances of conduct (ONLY when trait is at issue): When character or a trait of character is the ultimate issue (in civil cases), or an element of the crime or affirmative defense (in criminal cases), then instances of conduct may be offered as proof of character, along with opinion or reputation.
§ FRE 404(b) (CA 1101(b) – same): Can introduce specific acts of conduct for non-character purposes (e.g. impeachment of a witness).
o    Special Rules for Rape and Molestation
§ FRE 412(b)(1) Rape cases (CA 1103 same): Specific acts of victim are not allowed EXCEPT to show:
·         Another person is cause of semen or injury OR

ution to reduce charge; (2) relationship with party; (3) expert being paid; (4) bribery; (5) favoritism or hostility towards a party.
§ Prior Inconsistent Statements (CA 1235 – same). Can be oral or in writing and does not have to be under oath. A witness may be impeached by showing that at some prior point, the witness made a statement inconsistent with his or her testimony.
§ The target witness must have the opportunity to explain or deny the making of the statement, but the opportunity to do so can come after any extrinsic evidence has been presented.
§ Prior inconsistent statements are admissible, not only for impeachment, but also for the truth of the matter asserted if:
·         The statement was made by a party to the litigation (either the plaintiff or defendant); OR
·         The statement was made by any witness under oath.
§ Contradictory Evidence: An adversary’s witness may be impeached in several ways:
§ FRE 608(b) Specific instances of misconduct and bad acts: Prior acts of misconduct that did not result in a conviction, but that reflect on truthfulness, may be inquired about on cross-examination but NOT on direct. Extrinsic evidence is NOT admissible.
§ FRE 608(a) Opinion or reputation for truthfulness: A witness may be impeached by evidence that he or she has a poor reputation for truthfulness in the community in which he or she resides; OR that in another witness’ opinion, that target witness is not a truthful person.
·         The evidence may refer only to character for truthfulness or untruthfulness, AND
·         Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
§ Defect in Capacity: A witness may be impeached by showing that he or she does not have adequate perception, memory, or other sensory skills (e.g. mental capacity, vision, hearing) to give reliable testimony. The witness can be impeached on cross-examination or through extrinsic evidence.
o    No preemptive bolstering: Generally, cannot support credibility until attacked (attacked generally means more than just showing bias and includes opinion or reputation of witness being untruthful, cross examination of specific acts of untruthfulness, evidence of a prior conviction, prior inconsistent statement OR contradiction). CA 790 same.
§ Exception: Prior statement of identification of the witness may be used to bolster testimony (e.g. proof that a witness on a prior occasion, identified the defendant as the perpetrator of the crime may be introduced to bolster the testimony of the witness, even if the witness’ credibility has not been attacked).
o    Rehabilitating a witness: Generally, when a witness’ credibility has been attacked, his or her credibility may be rehabilitated through:
§ Evidence of a good reputation for truthfulness; OR
§ Explanation on redirect: This is giving the witness an opportunity to explain the evidence that has been used to impeach his or her credibility.
§ Evidence of a prior inconsistent statement is generally inadmissible to rehabilitate a witness, even for a witness impeached on grounds of a prior, inconsistent statement. A prior, consistent statement may be used only to rebut a charge of recent fabrication.
·         Hearsay
o    FRE 801 (CA 1200): (1) a statement; (2) made out of court (3) other than one made by the declarant; (4) while testifying at the present trial or hearing; (5) offered into evidence; (6) to prove the truth of the matter asserted.
§ “Out of court statement”: an oral assertion, a written assertion, or nonverbal conduct of a person if intended to be an assertion (e.g. pointing or nodding the head). An assertion is a positive declaration or a statement of a fact (NOT a question, exclamation or command). CA 225 same.
§ Test:
§ Is there an out-of-court statement?
§ What does the statement assert?
§ Are we using the statement to prove that what it asserts is true?