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Santa Clara University School of Law
Mirfield, Peter


Professor Mirfield

Fall 2010

I. Introduction

A. 3 issues in evidence (What are they?)

1. Relevance

a. The tendency of evidence to prove a proposition properly provable in the case (weight)

b. 3 Questions (What are they?)

A. What is the evidence being used to prove?

B. Is the proposition provable in the case?

C. Does the evidence help to prove the case? (When is exclusion of relevant evidence OK?)

c. Exclusion of relevant evidence is OK when its probative value is substantially outweighed by the danger of unfair prejudice. (What should you consider?)

A. Consider adequate alternatives to that evidential piece.

2. Admissibility

a. Whether the trier of fact is allowed to take the evidence into account.

3. Use

a. A judge cannot control how people use or weigh a piece of evidence. (What is a privilege?)

B. Privilege – freedom of a witness or person not to give evidence on a particular fact. (What is competence?)

C. Competence – minor/mentally ill not competent. (What if a statement has a hearsay/non hearsay use?)

D. IT is not uncommon to have a hearsay/non hearsay use of a statement. This is solved with a jury instruction.

II. Hearsay (Definition?)

A. Statement (an assertion) made by a person out-of-court and whether or not they are a witness is inadmissible for purposes of showing the truth of the matter stated. (What is original evidence?)

1. If the evidence isn’t offered to prove the truth of the statement, but for simply showing the fact it was stated, it’s called original evidence. (Does it only cover oral statements?)

B. It covers oral/written/action statements.

C. Reasons for including hearsay (3 things?)

1. Not made in oath

2. Not made in presence of trier of fact

3. Not subject to cross examination (What does the trier of fact lose w/lack of CE?)

a. Original statement maker’s Perception

b. Memory

c. Sincerity

d. Mode of expression

D. My Own Test (2 questions?)

1. What is P trying to prove?

2. Is the statement offered trying to prove the statement’s truth or merely the fact it was said at all?

E. Implied Assertions (What are they?)

1. Things lying behind explicit assertions or conduct that count as hearsay. (Are they hearsay?)

2. Key is the presence of an intent to assert. (Is silence hearsay?)

3. Silence, absent a showing of intentional silence intended to create an assertion, is not hearsay.

a. Silence is hearsay if it was intended to create an assertion.

F. Exceptions to hearsay (What is double hearsay?)

1. Double hearsay – hearsay in hearsay isn’t hearsay if each link of the chain contains an exception (Can party attack declarant’s credibility?)

2. If hearsay exception applies and the evidence is admitted, the opposing party can offer evidence to attack declarant’s credibility.

3. Unavailability – privileged, refusing to testify, lack of memory, dead, mental infirmity, can’t be found.

4. Spontaneous Exclamations (What are they?)

a. Utterance while under stress of a startling occurrence or event that relates to the circumstances of that event. (What does it require?)

b. Requires evidence of that event occurring for corroboration.

5. Present Sense Impression (What is it?)

a. If statement describes event, during or immedi

(What are they?)

a. Statements about current state of mind, emotion, sensation, or physical condition, but not including statements of memory or belief (like intent, motive, pain, health, design). (How does CA differ?)

b. California allows for statements concerning past pains. (When performance of an act by an individual is an issue?)

c. When the performance of an act by an individual is an issue in a case, his state of mind (intent) to perform that act is admissible.

d. Be wary of self serving statements and that long gaps of time hurts weight, not admissibility.

10. Medical Diagnosis / Treatment (What is it?)

a. Statements of the declarants present physical condition, medical history, past or present symptoms, pain, or cause of the condition are admissible. (Does it have to be a doctor?)

b. Can be made by anyone associated with providing medical attention

c. Doesn’t restrict who said it. Declarant doesn’t have to be involved (ie bystander).

11. Dying Declarations (What is it?)

a. Statement made by declarant, while believing his death is imminent, concerning the cause or circumstances of what he believes to be impending death. (Requires declarant have?)

b. Declarant must have personal knowledge of the cause / circ., but this is assumed. (Does declarant have to die?)

c. Declarant doesn’t have to actually die.