California Bar Examination Evidence (California & Federal) Syllabus

What is the rule on refreshing recollection (FRE 612) and how does it differ from recorded recollection?

Refreshing recollection (present recollection refreshed): a witness may review any item to refresh memory, then testifies from memory; the writing is NOT evidence. Recorded recollection (FRE 803(5)) is a hearsay exception where a witness cannot now recall, the record may be read into evidence but received as an exhibit only if offered by an adverse party.

List the methods of impeaching a witness's credibility.

(1) Prior inconsistent statements, (2) Bias/interest/motive, (3) Sensory or mental defect, (4) Character for untruthfulness via reputation/opinion (FRE 608(a)), (5) Specific acts of untruthfulness (FRE 608(b)), (6) Prior convictions (FRE 609), (7) Contradiction.

Under FRE 608(b), may specific instances of conduct be used to attack a witness's character for truthfulness?

Yes, but only on cross-examination, only if probative of truthfulness/untruthfulness, and the cross-examiner CANNOT prove them with extrinsic evidence (must take the witness's answer). FRE 608(b) covers bad acts not resulting in conviction.

What is the FRE 609 rule for impeaching with prior convictions?

Crimes of dishonesty/false statement (crimen falsi): automatically admissible, no balancing, if within 10 years. Felonies not involving dishonesty: admissible subject to balancing (FRE 403 for witnesses; a special 'reverse 403' more protective test for a criminal defendant). Convictions older than 10 years admissible only if probative value substantially outweighs prejudice.

How does California (Prop 8) treat impeachment with prior convictions differently from federal law?

In California criminal cases, any felony (and misdemeanor) involving 'moral turpitude' may be used to impeach under Prop 8, subject to CEC 352 discretion. This is broader than FRE 609, which focuses on dishonesty crimes and felonies, but California is subject to the 352 balancing.

What foundation is required to impeach with a prior inconsistent statement, and when is extrinsic evidence allowed?

Federal: extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain/deny AND the opposing party can examine the witness (FRE 613(b)), unless it concerns a collateral matter. California (CEC 770) generally requires the witness still be available to explain or the statement was raised while testifying.

What is the rule against impeaching on collateral matters?

A party may not introduce extrinsic evidence to contradict a witness on a collateral matter (one not material to the case and not otherwise admissible). The cross-examiner is stuck with the witness's answer on collateral points.

How may a witness's credibility be rehabilitated after impeachment?

Rehabilitation methods: (1) Explanation/clarification on redirect, (2) Reputation/opinion evidence of good character for truthfulness, but ONLY after the witness's character for truthfulness has been attacked (FRE 608(a)), and (3) Prior consistent statements in limited circumstances.

When are prior consistent statements admissible to rehabilitate, and are they hearsay (FRE 801(d)(1)(B))?

A prior consistent statement is admissible (and non-hearsay) to rebut a charge of recent fabrication or improper influence/motive (and the statement predates the motive), or to rehabilitate credibility when attacked on another ground. It is admissible substantively, not just to rehabilitate.

What is the standard for lay opinion testimony (FRE 701)?

A lay witness may give opinions that are (1) rationally based on the witness's perception, (2) helpful to understanding the testimony or determining a fact, and (3) NOT based on scientific, technical, or other specialized knowledge (those fall under FRE 702).

What are the requirements for expert testimony under FRE 702?

(1) The expert is qualified by knowledge, skill, experience, training, or education; (2) the testimony helps the trier of fact; (3) it is based on sufficient facts/data; (4) it is the product of reliable principles and methods; and (5) the expert reliably applied those methods to the facts.

Compare the Daubert and Frye standards for admitting scientific evidence.

Daubert (federal, FRE 702): the judge is a gatekeeper assessing reliability via factors like testability, peer review, error rate, and acceptance. Frye (followed in California as 'Kelly/Frye'): the technique must be 'generally accepted' in the relevant scientific community. California uses the Kelly (Frye-based) general-acceptance test.

On what bases may an expert rely for an opinion (FRE 703)?

An expert may base an opinion on facts/data: (1) personally observed, (2) admitted into evidence, or (3) made known to the expert outside court (even if otherwise inadmissible) IF experts in the field reasonably rely on such data. Inadmissible bases may be disclosed to the jury only if their probative value substantially outweighs prejudice.

May an expert give an opinion on the ultimate issue (FRE 704)?

Generally yes, opinion is not objectionable just because it embraces an ultimate issue. EXCEPTION (FRE 704(b)): in a criminal case, an expert may NOT state an opinion about whether the defendant did or did not have the mental state constituting an element of the crime or defense.

Define hearsay under FRE 801.

Hearsay is a statement (oral/written assertion or assertive conduct), made by the declarant out of court (not while testifying at the current trial/hearing), offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception or exclusion applies (FRE 802).

List common nonhearsay uses (statements offered not for their truth).

(1) Verbal acts/legally operative words (contract, defamation), (2) Effect on the listener (notice, motive, fear), (3) State of mind circumstantially shown, (4) To impeach by prior inconsistent statement, and (5) Statements offered to show they were made (not truth).

What statements are defined as NOT hearsay under FRE 801(d)(1) (prior statements of a testifying witness)?

A declarant-witness's prior statement is non-hearsay if the declarant testifies and is subject to cross, and the statement is: (A) inconsistent AND given under penalty of perjury at a prior proceeding; (B) consistent, to rebut fabrication/improper motive or rehabilitate; or (C) one of identification of a person.

What is an opposing party's statement (admission) under FRE 801(d)(2), and what are its categories?

Non-hearsay when offered against a party: (A) the party's own statement; (B) adoptive admission; (C) statement by an authorized spokesperson; (D) statement by an agent/employee on a matter within scope during employment; (E) coconspirator statement made during and in furtherance of the conspiracy. Need not be against interest when made.

How does California classify party admissions, unlike the FRE?

Under California Evidence Code (CEC 1220 et seq.), party admissions are treated as hearsay EXCEPTIONS rather than as non-hearsay 'exclusions.' The substantive result is similar, but California's categories (e.g., authorized/adoptive/coconspirator) are framed as exceptions to the hearsay rule.

Which hearsay exceptions require the declarant to be UNAVAILABLE (FRE 804)?

(1) Former testimony, (2) Dying declaration (statement under belief of imminent death), (3) Statement against interest, (4) Statement of personal/family history, and (5) Statement offered against a party that wrongfully caused the declarant's unavailability (forfeiture by wrongdoing).

What constitutes 'unavailability' under FRE 804(a)?

A declarant is unavailable if they: (1) are exempt due to privilege, (2) refuse to testify despite court order, (3) lack memory of the subject, (4) are dead or too ill, or (5) are absent and the proponent could not procure attendance by process or other reasonable means. The proponent must not have caused the unavailability.

What are the requirements for the dying declaration exception, and how do federal and California versions differ?

FRE 804(b)(2): statement made under belief of imminent death, concerning its cause/circumstances, admissible only in a HOMICIDE prosecution or a CIVIL case (declarant need not actually die but must be unavailable). California (CEC 1242): applies in ALL cases but requires the declarant to actually be dead and to have made it under a sense of immediately impending death.

What are the elements of the former testimony exception (FRE 804(b)(1))?

Testimony given at a prior trial, hearing, or deposition is admissible if the declarant is unavailable AND the party against whom it is offered (or, in a civil case, a predecessor in interest) had an opportunity and similar motive to develop the testimony by direct, cross, or redirect.

What are the requirements for the statement-against-interest exception (FRE 804(b)(3))?

Declarant unavailable; the statement, when made, was so contrary to the declarant's pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true. If offered in a criminal case to exculpate the accused, corroborating circumstances must indicate trustworthiness.

Distinguish a statement against interest from a party admission.

Statement against interest (FRE 804(b)(3)): requires the declarant be unavailable; can be made by anyone (a non-party); must have been against interest WHEN MADE; based on reliability. Party admission (FRE 801(d)(2)): only by a party-opponent; declarant need not be unavailable; need NOT be against interest when made.

List key hearsay exceptions that do NOT require the declarant's unavailability (FRE 803).

Present sense impression; excited utterance; then-existing mental/emotional/physical condition; statements for medical diagnosis/treatment; recorded recollection; business records; public records; absence of records; learned treatises; reputation; records of vital statistics/religious organizations; and judgments of prior conviction.

Distinguish present sense impression from excited utterance (FRE 803(1) vs. 803(2)).

Present sense impression: describes/explains an event made while or immediately after perceiving it (no startling event needed; contemporaneity is key). Excited utterance: relates to a startling event, made while the declarant was still under the stress of excitement it caused (allows a longer time lag if stress persists).

What are the requirements for the business records exception (FRE 803(6))?

A record (1) made at or near the time, (2) by or from someone with knowledge, (3) kept in the regular course of a regularly conducted business activity, (4) where making the record was a regular practice, (5) shown by a custodian/qualified witness or certification, and (6) the source/method does not indicate a lack of trustworthiness. Records prepared for litigation may be excluded.

What are the requirements for statements for medical diagnosis or treatment (FRE 803(4))?

Statements made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, symptoms, or their general cause. The cause is admissible if pertinent to treatment; statements of fault/identity generally are not (exception: identity in some abuse cases). The declarant's motive to be truthful supplies reliability.

How does the public records exception (FRE 803(8)) limit use of police reports in criminal cases?

Public records of agency activities, matters observed under a legal duty, or factual findings from investigations are admissible. BUT in a CRIMINAL case, matters observed by law-enforcement personnel and investigative reports are NOT admissible AGAINST the defendant (to preserve confrontation rights).

What is the residual (catch-all) hearsay exception (FRE 807)?

A hearsay statement not covered by 803/804 may be admitted if (1) it has sufficient guarantees of trustworthiness (considering totality and corroboration) and (2) it is more probative on the point than other reasonably available evidence. Notice to the adverse party is required. California has NO residual exception.

What does the Confrontation Clause (Crawford) require for hearsay in criminal cases?

Under Crawford v. Washington, a TESTIMONIAL out-of-court statement by an unavailable declarant is inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the declarant. This applies even if the statement fits a hearsay exception.

How do courts determine whether a statement is 'testimonial' (Davis v. Washington)?

A statement to police is NON-testimonial if made to enable police to meet an ongoing emergency (its primary purpose). It is TESTIMONIAL if the primary purpose is to establish/prove past events potentially relevant to later criminal prosecution (e.g., structured interrogation after the emergency ends).

How does forfeiture by wrongdoing interact with the Confrontation Clause (Giles v. California)?

A defendant forfeits Confrontation Clause objections if they engaged in wrongdoing INTENDED to make the witness unavailable (Giles requires specific intent to prevent testimony). This mirrors the FRE 804(b)(6) forfeiture-by-wrongdoing hearsay exception.

What is the attorney-client privilege and who holds it?

Confidential communications between a client and attorney made to facilitate legal services are privileged. The CLIENT holds the privilege (attorney asserts on client's behalf). It covers communications, not underlying facts, and survives the client's death. Exceptions include the crime-fraud exception.

What is the crime-fraud exception to the attorney-client privilege?

There is no privilege if the client sought or used the attorney's services to enable or aid the commission of a future crime or fraud. Communications about past wrongdoing remain privileged; the exception targets ongoing/future criminal or fraudulent schemes.

Compare the spousal testimonial privilege and the marital communications privilege.

Spousal testimonial privilege (criminal cases): a spouse cannot be compelled to testify against the defendant-spouse; held by the witness-spouse (federal); covers all testimony but only during marriage. Marital (confidential) communications privilege: protects confidential communications during a valid marriage; held by both spouses; survives divorce; applies in civil and criminal cases.

What is the work-product doctrine and how does it differ from attorney-client privilege?

Work product protects materials prepared in anticipation of litigation. Ordinary work product is discoverable on a showing of substantial need and inability to obtain the equivalent without undue hardship; OPINION work product (attorney's mental impressions/legal theories) gets near-absolute protection. Unlike the privilege, it protects documents, not just communications.

What are the methods of authenticating a writing or item (FRE 901)?

The proponent must produce evidence sufficient to support a finding that the item is what it claims to be. Methods: testimony of a witness with knowledge, nonexpert opinion on handwriting, expert comparison, distinctive characteristics, voice/telephone identification, evidence about public records, ancient documents, or a process/system producing an accurate result.

What documents are self-authenticating under FRE 902 (no extrinsic evidence needed)?

Examples: domestic public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, commercial paper, and certified domestic/foreign business records (902(11)-(12)) and certified electronic records (902(13)-(14)).

How is an ancient document authenticated (FRE 901(b)(8))?

A document is self-authenticated as 'ancient' if it (1) is at least 20 years old, (2) is in a condition that creates no suspicion about its authenticity, and (3) was found in a place where, if authentic, it would likely be. (Note: California's ancient-document rule uses 30 years.)

State the Best Evidence (Original Writing) Rule under FRE 1002.

To prove the CONTENT of a writing, recording, or photograph, the original (or a duplicate) is required unless an exception applies. The rule applies only when the terms of the writing are at issue or a witness relies on the writing to prove content, not when a fact exists independently of the writing.

When does the Best Evidence Rule NOT apply?

It does not apply when: (1) a fact to be proved exists independently of any writing, (2) the writing is collateral/unimportant, or (3) a witness with personal knowledge testifies to a fact that happens to be recorded. It applies only when proving the terms/content of the writing itself.

When may secondary evidence of a writing's content be admitted (FRE 1004)?

The original is not required (and other evidence of content is admissible) if: (1) all originals are lost/destroyed (not in bad faith), (2) the original cannot be obtained by available process, (3) the opponent had control of the original and was on notice it would be subject to proof, or (4) the writing is collateral.

How does California's 'Secondary Evidence Rule' differ from the federal Best Evidence Rule?

California abolished the strict Best Evidence Rule and adopted the Secondary Evidence Rule (CEC 1521): the content of a writing may be proved by otherwise admissible secondary evidence (not just duplicates), unless there is a genuine dispute about the original's terms or admission would be unfair. Originals are not strictly required.

What is a 'duplicate' and when is it admissible to the same extent as an original (FRE 1003)?

A duplicate is a counterpart produced by a process that accurately reproduces the original (e.g., photocopy, scan). It is admissible to the same extent as the original UNLESS a genuine question is raised about the original's authenticity or circumstances make it unfair to admit the duplicate.

What is judicial notice of adjudicative facts (FRE 201)?

A court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it is (1) generally known within the territorial jurisdiction, or (2) capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned. It may be taken at any stage.

What is the effect of taking judicial notice in civil versus criminal cases (FRE 201)?

In a CIVIL case, the court must instruct the jury to accept the noticed fact as conclusive. In a CRIMINAL case, the court must instruct that the jury MAY (but is not required to) accept the noticed fact as conclusive, to preserve the defendant's jury-trial rights.

Distinguish the burden of production from the burden of persuasion.

Burden of production (going forward): the obligation to produce enough evidence on an issue to allow a reasonable trier of fact to find in one's favor (avoid directed verdict). Burden of persuasion: the obligation to convince the trier of fact to the required standard (preponderance, clear and convincing, or beyond a reasonable doubt). It does not shift.

What is the effect of a rebuttable presumption in a civil case under the FRE (Thayer 'bursting bubble' view)?

Under FRE 301, a presumption shifts the burden of PRODUCTION to the opposing party but does NOT shift the burden of persuasion. Once the opponent produces sufficient rebutting evidence, the presumption 'bursts' (disappears) and the case proceeds on the underlying facts.

How does California treat presumptions, and what two types does it recognize?

California (CEC) recognizes (1) presumptions affecting the BURDEN OF PRODUCTION (rebuttable, bursting-bubble like federal) and (2) presumptions affecting the BURDEN OF PERSUASION (which actually shift the burden of persuasion to the opposing party and are based on public policy). This differs from the federal single Thayer approach.

What is a conclusive (irrebuttable) presumption versus a permissive inference?

A conclusive presumption is a substantive rule of law that cannot be rebutted by contrary evidence (e.g., certain conclusive presumptions of paternity/legitimacy). A permissive inference allows, but does not require, the trier of fact to draw a conclusion from established facts and shifts no burden.