Relevance ,Privileges and Objections
When is evidence relevant?
1. If it has any tendency to make a fact more or less probable than it was without evidence
2. the act is of consequence in determining the action
What is the rule against Character evidence? How do you prove character evidence?
Prohibited Uses: Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion, the person acted in accordance with the character or trait.
(a) By Reputation or Opinion.
- it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.
(b) By Specific Instances of Conduct.
- When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
When can you not use extrinsic evidence to impeach?
Impeachment by asking about specific instances of untruthfulness under FRE 608(b): If a witness is asked on cross-examination about specific instances of their conduct probative of truthfulness or untruthfulness and denies those instances, the cross-examiner cannot introduce extrinsic evidence to prove that the witness committed those act
What is the confrontation clause and what is the rule regarding hearsay?
Gives the defendant the right IN A CRIMINAL CASE, to Physical Face-to-face confrontations and cross-examination of witness
RULE:
- If declarant testifies and is subject to cross-examination about the hearsay, the Confrontation Clause is satisfied
- Testimonial hearsay is admissible only if D had a prior opportunity to cross the now unavailable declarant
What is the best evidence rule? What is the secondary evidence rule? When do you use them?
BER: An original writing, recording, or photograph is required in order to prove its content unless the rules or a federal statute provides otherwise.
SER: using secondard evidence (extrinsic) to prove what the content of the writing is
- can use a summary or testimony about contents if the original is lost or destroyed (not in bad faith), unobtainable, or in the opposing party’s control and they refuse to produce it.
What issues of admissibility are decided by the judge, and what issues are left for the jury to decide under the Federal Rules of Evidence?
UNDER FRE
The judge (under FRE 104(a)) decides preliminary questions of law, including:
Whether evidence is admissible (e.g., hearsay exceptions, privileges, relevance under FRE 403)
Whether a witness is qualified
Whether a privilege exists
Whether a statement falls under an exception
Foundational facts for hearsay exceptions, habit, or expert testimony
✅ Judge uses any evidence, not bound by rules of evidence (except privilege)
✅ Preponderance of the evidence standard applies
The jury (under FRE 104(b)) decides:
Whether a conditional fact exists — when relevance depends on that fact
Examples:
Did the defendant hear the statement?
Was the object connected to the defendant?
Was a co-conspirator in the conspiracy?
✅ The judge admits the evidence if a reasonable jury could find the fact by a preponderance
Under CEC
Judge decides all legal questions, including:
– Admissibility
– Privilege
– Hearsay exceptions
– Relevance and prejudice (CEC §352)
– Foundation for exceptions
✅ Standard: Preponderance
✅ Judge may consider inadmissible evidence (except privilege)
Jury decides disputed foundational facts that affect admissibility (e.g., whether a statement was made, whether a witness had personal knowledge).
– Judge admits if sufficient evidence exists for a jury to reasonably find the fact true
If the defendant introduces their own character trait, when/how can the prosecution respond?
When can a criminal defendant offer evidence of the victim’s character? How can the prosecution respond?
Through reputation or opinion, the prosecution may rebut with evidence of the same trait (e.g., D offers peacefulness → P can rebut with violence)
Only in a self-defense case, D may offer reputation or opinion evidence that the victim has a violent character to show the victim was the first aggressor. (P can Offer evidence of the victim’s peaceful character; or 2) Offer evidence that the defendant has a violent character.)
When can a conviction not be used to impeach? When do you not need to do a balancing test for conviction?
FRE
Cannot be used to impeach when:
- a conviction is more than 10 years old
- the witness has received a pardon, annulment, or certificate of rehabilitation
- Misdemeanors that do not involve dishonesty (only honest crimes that can be used are felonies)
- It is being used against a criminal defendant and fails the reverse 403 test (Must show probative value outweighs prejudicial effect)
no balancing test
No 403 balancing is required when the conviction:
Involves a crime of dishonesty or false statement (FRE 609(a)(2)) — e.g., fraud, perjury, embezzlement, forgery.
CEC
Cannot be used:
- Misdemeanors: generally inadmissible for impeachment (People v. Wheeler), even if the crime involves dishonesty.
- Felony not involving moral turpitude (Felony must involve moral turpitude (i.e., readiness to do evil, dishonesty, violence) to be admissible for impeachment)
When is former testimony admissible? What are the requirements?
FRE:
Former testimony is admissible if:
Declarant is unavailable
The testimony was given under oath at a prior hearing, trial, or deposition;
The testimony is now offered against a party (or in a civil case, their predecessor in interest) who:
An opportunity to examine the witness, and
A similar motive to do so.
In civil cases, may be offered against a predecessor in interest
- Applies in civil and criminal cases
- Allows use against a different party in civil cases if predecessor in interest had similar motive
CEC:
Offered against party to the former proceeding (or successor in Interest)
Admissible if:
Declarant is unavailable;
Testimony was given under oath in a prior legal proceeding;
Testimony offered against:
a party who was in the earlier proceeding, OR
Is a successor in interest to a person who offered the testimony in their own favor
✅ Applies in civil and criminal cases
❗“Successor in interest” only applies when the original party offered the testimony in their favor, and it is now being used against them or their successor
→ Narrower than FRE
Offered against someone who was NOT A PARTY in former proceeding
❌ Only applies in civil cases
❌ No “predecessor in interest” rule
What are the common types of foundations?
1. Testimony of a Witness with Knowledge
- Testimony that an item is what it’s claimed to be.
2. Authenticating photos/videos
- Ask witness: “Is the photo a fair and accurate representation of what it purports to be?”
3. Authenticating handwriting
- Non-Expert Opinion About Handwriting
- Comparison by an Expert Witness or the Trier of Fact
4. Distinctive Characteristics
- The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with/ all the circumstances.
5. Opinion About a Voice
- An opinion identifying a person’s voice—whether heard firsthand or through mechanical/electronic recording—based on hearing the voice at any time under circumstances that connect it w/ the alleged speaker.
6. Evidence About a Telephone Conversation
-
7. Public Records
- A) A document was recorded or filed in a public office as authorized by law;
or
- B) A purported public record or statement is from the office where items of this kind are kept
8. Ancient Documents or Data Compilations
- Evidence that:
A) Is in a condition that creates no suspicion about its authenticity;
B) Was in a place where, if authentic, would likely be; and
C) Is at least 20 years old when offered
9. Process or System
– Evidence describing a process or system and
showing that it produces an accurate result.
10. Electronic Communications (Letters, emails, texts, social media)
- Usually, as long as it’s clear from the context that it’s a response to an earlier communication
How do you make a proper objection? How do you make an offer of proof?
Specific, timely, and correct
after the objection is sustained offer proof by substance purpose or relevance of the evidence OR put witness on stand and ask Q&A to determine
In a homicide case, when can the prosecution offer evidence of the victim’s peacefulness without the defendant first attacking the victim’s character?
When the defendant argues the victim was the initial aggressor through non-character witness
How do PIS differ when used to Impeach versus when used to prove TOMA? Under both FRE and CEC
FRE
1. When used for Impeachment:
Purpose: To show the witness is unreliable or untruthful—i.e., to undermine their credibility.
Not offered for TOMA, so not hearsay
Foundation:
Extrinsic evidence: Allowed only if the inconsistent statement is non-collateral (i.e., relevant beyond just credibility).
2. When used for TOMA:
Purpose: The prior statement is introduced to prove the truth of what it asserts.
Not hearsay only if these requirements are met:
Declarant testifies at trial;
Is subject to cross-examination about the prior statement;
The prior statement is inconsistent with current testimony;
The prior statement was made under oath in a formal proceeding (trial, hearing, deposition, grand jury).
If any requirement is not met, the statement is inadmissible hearsay unless it fits another exception
CEC
1. When used for Impeachment (CEC §770, §780):
Purpose: To show the witness’s testimony is inconsistent and therefore not credible.
Not hearsay because it's not offered for the truth—just to attack credibility.
Foundation:
The witness must be given an opportunity to explain or deny the prior statement (same as FRE).
Extrinsic evidence is allowed as long as the prior statement is not on a purely collateral matter
Major difference
- CEC 1235 creates a hearsay exception for all PIS (you can always offer a PIS to impeach and for TOMA
- Whereas FRE only allows an exception for PIS for TOMA if the PIS was made in a court setting under oath
For what exceptions must the declarant be unavailable? What does it mean to be unavailable?
Former testimony
Dying declaration
Statement against interest
Wrongful foreiture
Declarant is “unavailable” if they:
Are exempt due to privilege,
Are disqualified from testifying,
Are dead or unable due to illness/infirmity,
Cannot be located despite reasonable diligence,
Refuse to testify despite legal process,
Have total memory loss (like FRE
What is authentication? How do you authenticate a document? What types of documents are self-authenticating
Authentication
- The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
How to Authenticate:
Testimony of a witness with knowledge
Distinctive characteristics
Comparison by an expert or jury
Chain of custody evidence
Reply letter doctrine
Voice identification or telephone confirmation
Self-authenticating
- No extrinsic evidence is required for:
Certified public documents
Official publications
Newspapers, periodicals
Commercial labels
Notarized documents
Business records certified by custodian (with notice)
What are the different types of privileges protected? What are the requirements/tests?
1. Physician-patient privilege
- Exists in CEC, but not in FRE; Applies in criminal
- Most if not all states have the physician-patient privilege. The privilege has not been adopted by the federal courts.
- The privilege covers private communications between doctor and patient, as well as information the doctor observes by examining the patient.
2. Psychotherapist-client Privilege
- Exists in FRE and CEC.
- Applies in civil and criminal.
- The psychotherapist-client privilege covers confidential communications between clients and psychotherapists.
3. Spousal Privileges
- There are two spousal privileges:
(1) The spousal confidential communications privilege
- The spousal testimonial privilege gives a married person the authority to refuse to testify against their spouse. With this privilege, the spouse does not take the witness stand to answer any questions. The privilege ends when the marriage ends.
(2) The spousal testimonial privilege.
- This privilege protects confidential communications between married persons. Both spouses are holders of the privilege.
- However, unlike the spousal testimonial privilege, which ends if the marriage ends, the spousal confidential communications privilege protects confidential communications uttered during the marriage after the marriage end
4. Attorney-Client Privilege
If a character witness testifies that the defendant is a peaceful person, what may the prosecution ask on cross?
Can the prosecution introduce extrinsic evidence to rebut the character witness’s testimony if the witness denies knowledge of a specific act?
Under FRE 405(a), the prosecution may ask about specific acts inconsistent with the trait (e.g., “Did you know the defendant once stabbed someone?”)
No. Under FRE 405(a), specific acts may be asked about on cross but cannot be proved with extrinsic evidence.
When can a Felony conviction be used to impeach? What about misdemeanor?
FRE:
-Felony Convictions (Crimes Punishable by >1 Year in Prison):
For any witness (not the accused):
Admissible subject to FRE 403 balancing — i.e., excluded only if probative value is substantially outweighed by unfair prejudice.
Admissible only if probative value outweighs prejudicial effect.
- Misdemeanor Convictions:
Only admissible if the crime involved a dishonest act or false statement (e.g., perjury, fraud, embezzlement, forgery).
No balancing test required
If the misdemeanor does not involve dishonesty, it is not admissible for impeachment under FRE 609.
CEC
- Felony Convictions:
Admissible only if the felony involves moral turpitude (i.e., a readiness to do evil, dishonesty, violence).
Applies to all witnesses, including criminal defendants.
Courts apply CEC §352 balancing — exclusion if prejudice substantially outweighs probative value.
- Misdemeanor Convictions:
Generally inadmissible for impeachment
Exception: Moral turpitude misconduct may be explored through cross-examination, but the conviction itself is not admissible (People v. Chatman).
Prosecutors can ask about the conduct underlying the misdemeanor if it shows moral turpitude, but cannot introduce the conviction as evidence
When does a Bruton problem arise? How do courts handle it?
In a criminal case where multiple defendants are tried together and there is a statement from one of the defendants that is party admission against themselves but mentions other defendants (by name or obvious reference)
Party statements can be used against them but not against co-conspirators bc hearsay
- Part that mentions other conspirators is inadmissible under Bruton which is part of Confrontation clause but part that is about declarant can be used against declarant
What is the foundation for unique vs non-unique physical items? What about telephone calls?
Unique:
Non-unique:
Telephone Calls:
- Identifying the voice of the caller:
- Identifying the voice of callee
- Identifying call to business or government agency
What are the different balancing tests? When do you use them? When do you not use a balancing test?
1. Normal 403 balancing
- Relevant evidence can be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
2. Impeachment by conviction where D = Witness
- used when the prosecution seeks to impeach the defendant in a criminal case with evidence of a prior felony conviction
- Admissible if the probative value of the evidence outweighs its prejudicial effect to that defendant
3. Facts or Data Relied Upon by an Expert
- If an expert relies on facts or data that would otherwise be inadmissible the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect
DON'T USE BALANCING WHEN
- Impeachment by conviction for crimes involving deceit or lying-- evidence is automatically admissible
When can you use a CW versus Specific Instances?
In criminal cases, California allows specific instances of conduct on direct examination to prove both the defendant’s and the victim’s character.
In FRE not permitted on direct to prove character, unless character is an essential element of a charge, claim, or defense (e.g., defamation, negligent hiring). May be used on cross-examination of a CW to test their knowledge or credibility, but no extrinsic evidence may be introduced.
When can you not use extrinsic evidence to impeach?
Impeachment by asking about specific instances of untruthfulness under FRE 608(b): If a witness is asked on cross-examination about specific instances of their conduct probative of truthfulness or untruthfulness and denies those instances, the cross-examiner cannot introduce extrinsic evidence to prove that the witness committed those act
What are waiver of objections and forfeiture of hearsay and CC objections
Failure to object
- waives error
- Not making Objection timely or specific (can't make hearsay objection if meant confrontation)
Forfeiture of hearsay and CC by wrongdoing
- Common law forfeiture of 6th Amendment right
- Can raise both CC and Hearsay under wrongdoing
Two types of wrongdoing
A) Witness tampering
- D commits a crime, and is awaiting trial
- To prevent a potential witness from testifying at trial, D threatens or murders the witness
B) Hearsay exception
- A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
What is the difference between authentication and the Best Evidence Rule? Is it the same under CEC
Under FRE
Authentication asks: Is this what it purports to be?
BER asks: Are you trying to prove the contents of a writing? If so, where is the original?
Under CEC
Authentication asks: Is this what it purports to be?
BER: CA doesn't have BER but has SER (secondary evidence rule)
- when a party seeks to prove the contents of a writing, the proponent does not have to produce the original as long as the copy or oral testimony is reliable and the original is not being used unfairly.
- Under CEC §1521, secondary evidence is not allowed if:
The genuineness of the original is in dispute,
It would be unfair to admit the secondary evidence.