Evidence on the California Bar Exam Long Outline


EVIDENCE

I. Relevance

  1. Two-Step Inquiry

    1. Is the evidence relevant (tends to prove or disprove a material fact)?

      1. General Rule: evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence it’s relevant (logical relevance), but evidence must relate to the time, event, or person involved in the present litigation

      2. Exception: certain similar acts may be relevant if probative of a material issue: (1) to prove cause and effect, (2) to show common plan or scheme of fraud, (3) to show instrumentality, (4) to infer intent from prior conduct, (5) to rebut impossibility, (6) to establish value, (7) habit (need specific description + recurrence), (8) business routine. Must show: substantial identity of material circumstances.

    2. If relevant, should the evidence nonetheless by excluded based on:

      1. Judicial discretion: exclude if the probative value of the evidence is substantially outweighed by the danger of (1) unfair prejudice, (2) confusion of issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) cumulative evidence.

      2. Public policy:

        1. Liability insurance: not admissible to show negligence or ability to pay

          1. Rationale: to encourage use of insurance.

          2. But, admissible when relevant to show ownership and control, or impeach credibility of witness by showing interest or bias

        2. Subsequent remedial measures: not admissible to show negligence, culpability, defect, or a need for a warning or instruction.

          1. Rationale: encourage subsequent repairs.

          2. But, admissible to show ownership and control, or impeachment (to controvert feasibility of precautionary measures).

        3. Settlements: not admissible to prove fault, liability or damage.

          1. Includes: actual compromises, offers to compromise, offers to plead guilty in a criminal case, withdrawn guilty pleas, pleas of nolo contendere, admissions of facts, liability or damage made in the course of settlement discussions.

          2. Limitations:

            1. There must be a claim w/ a claimant that gives some indication that he plans to file a claim.

            2. The claim must be disputed as to either liability or amount

            3. An offer to pay hospital or medical expenses is not admissible either. But, an admission that accompanies the naked payment offer IS admissible.

  2. Character Evidence

    1. 4 Preliminary Questions:

      1. For what purpose do you seek to offer character evidence?

        1. When character is the ultimate issues in the case → ok

        2. To impeach the credibility of a witness → ok

      2. What method to prove character?

        1. Specific acts

        2. Opinion testimony

        3. Testimony as to the person’s general reputation in the community

      3. What type of case? Criminal or civil?

      4. What trait of character? It must be the specific trait which is substantively at issue in the case.

    2. Civil cases: character evidence NOT admissible as circumstantial evidence to prove conduct. But, character evidence is admissible in a civil case IF character is directly at issue (e.g. defamation, negligent entrustment, loss of consortium). May prove by any method.

    1. Criminal cases:

      1. Basic Rules: Bad character, in any form, is NOT admissible at the initiative of the prosecution if the sole purpose is to show criminal propensity

UNLESS & UNTIL

The accused opens the door by presenting evidence of good character for the pertinent trait in the form of reputation and opinion to show innocence. Only then may the prosecution respond by showing the bad character of the accused by:

      1. Cross-examining the character witness (including whether he knows of or has heard of specific instances of the D’s misconduct)

      2. Calling qualified witnesses to testify to D’s bad reputation, or give their opinion as to D’s character.

    1. Evidence of the victims bad character

      1. In cases other than rape – self defense: D may present evidence of the victim’s bad character when it is relevant to show the D’s innocence.

        1. By reputation or opinion (to show victim’s violent disposition). By knowledge of specific acts (to show D’s state of mind).

        2. Prosecution may counter with reputation or opinion evidence of the (i) victim’s good character, or (ii) the defendant’s bad character for the same trait.

      2. In sexual misconduct cases (rape cases): victim’s past sexual behavior is generally inadmissible.

        1. Exceptions in criminal cases: (1) to prove that someone other than the D is the source of semen, injury, or other physical evidence (2) specific instances of sexual behavior between D and V are admissible by the prosecution for any reason, and by the D to prove consent.

        2. Exceptions in civil cases: admissible if not excluded by any other rule and its probative value substantially outweighs the danger of the harm to the victim. Evidence of the V’s rep. is admissible only if placed in controversy by the V.

    2. Evidence of a person’sother crimes or misconduct is generally inadmissible.

      1. But, such evidence is admissible IF it is relevant to some issue other than character or disposition.

        1. M.I.M.I.C.: motive (i.e. burn building to hide embezzlement), intent (lack of good faith), absence of mistake, identity (stolen gun used or “signature” crimes), or common plan or scheme.

        2. To impeach credibility – to show lack of truthfulness after the D testifies (perjury convictions, for example).

      2. Applies in both civil and criminal cases.

      3. To be admissible: (1) there must be sufficient evidence to support a jury finding that the D committed the prior act, and (2) its probative value must not be substantially outweighed by the danger of unfair prejudice.

      4. Evidence of prior sexual assault or child molestation is always admissible in a case where the D is accused of committing a sexual assault or child molestation. So, D need not open any doors for Prosecution to raise issue. Not limited to prior convictions. Includes any evidence of prior acts.

II. Judicial Notice

  1. Judicial Notice of Fact: Court may take judicial notice of indisputable facts that are either (1) common knowledge in the community, or (2) easily capable of verification.Effect of judicial notice:

    1. In a civil case: fact is conclusive

    2. In a criminal case case, jury may, but is not required, to accept as conclusive any judicially noticed fact.

  2. Judicial Notice of Law: Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts may take judicial notice of municipal ordinances, private acts, resolutions of Congress, or laws of foreign countries.

III. Real Evidence

  1. Defined: actual physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original, or prepared (demonstrative).

  2. General Conditions of Admissibility

    1. Authentication: object must be identified as to what the proponent claims it to be, either by:

      1. Testimony of a witness that she recognizes the object as what the proponent claims or

      2. Evidence that the object has been held in a substantially unbroken chain of possession.

    2. If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

    3. Balancing test to weigh relevance of evidence v. convenience of bringing it to the courtroom, indecency or impropriety, or undue prejudice.

  3. Particular Types of Real Proof:

    1. Photos, diagrams, maps etc. admissible if relevant. Evidence used solely for explanatory purposes permitted at trial, but usually not admitted into evidence.

    2. Maps, charts, models are usually admissible to illustrate testimony, but must be authenticated.

    3. Child may be exhibited to prove race in paterntity suit.

    4. Injuries may be exhibited, but court may exclude if unfair prejudice

    5. Court has discretion to permit the jury to view places at issue in the trial

    6. Court has discretion to permit experiments or demonstrations in the courtroom.

IV. Documentary Evidence

  1. In general: court may admit relevant documentary evidence. When you get a question about a writing, ask yourself 3 questions: (1) Was it authenticated? (2) Is it hearsay? (or an exception?) and (3) Is it the best evidence?

  2. Authentication: to be admitted, a writing must be authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding (a reasonable jury could find that the document is valid). Proper authentications include:

    1. Admission by party against whom the evidence is offered.

    2. Eyewitness testimony

    3. Evidence of the genuineness of the handwriting of the maker. May be opinion of a lay witness with personal knowledge, or an expert who has compared the writing to samples of the maker’s handwriting. Jury may also determine genuineness through comparison of samples.

    4. Evidence that the document is at least 20 years old, regular on its face, and was found in a place where such writings are kept (ancient documents rule).

    5. Evidence that it was written in response to a communication sent to the claimed author.

    6. Witness familiar with the scene in a photograph may authenticate the photo by testimony that it is a correct representation of certain facts. When no one can authenticate the scene, authenticate by showing that the camera was properly operating at the relevant time, and that the photo was developed from film obtained from that camera.

    7. X-rays: must show that the process used is accurate, the machine in working order, and the operate was qualified.

    8. Oral statements: may be authenticated by anyone who has heard the voice at any time. Or for telephone conversations, testimony from one of the parties to the call that (1) he recognized the other party’s voice, (2) the speaker had knowledge of certain facts that only a particular person would have; (3) he called a particular person’s number and voice answered as the person; or (4) he called a business and talked w/ the person answering the phone about matters relevant to the business.

    9. No authentication needed for: (1) certified copies of public records, (2) official publications, (3) newspapers and periodicals, (4) trade inscriptions or labels, (5) acknowledged documents, (6) commercial paper (7) certified business records.

  1. Best Evidence Rule: To prove the content of a writing, the original writing must be produced. Secondary evidence of the writing (e.g. oral testimony) is only admissible if the original is unavailable.

    1. Applies where(1) the writing is a legally operative or dispositive instrument; or (2) a witnesses knowledge of a fact results from having read it in the document.

    2. Does NOT apply where (1) facts to be proven exist independently of the writing (witness has personal knowledge), (2) the writing is of minor importance to the controversy (collateral document rule), (3) records are voluminous (can produce summary instead, must provide access to opposing side, and notice that you’re presenting a summary); (4) public records.

    3. Machine generated duplicates/exact copies of an original are admissible unless (1) the authenticity of the original is challenged or (2) unfairness would result.

    4. If proponent can’t produce the original, he may offer secondary evidence if a satisfactory explanation is given for non-production of the original. Valid excuses include:

      1. Loss or destruction of the original

      2. Original is in possession of a 3rd party outside of the jurisdiction, and is unobtainable

      3. Original is in possession of an adversary who fails to produce the original.

    5. Judge decides admissibility of duplicates, other copies, etc. But the jury decides:

      1. Whether the original ever existed

      2. Whether a writing, etc. produced at trial is an original

      3. Whether the evidence offered correctly reflects the contents of the original.

  2. Parol Evidence Rule: if an agreement is reduced to writing. The writing constitutes the whole agreement. Prior contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing. Rule does NOT apply – prior contemporaneous negotiations are admissible to

    1. Complete an incomplete K, or explain an ambiguous term

    2. Reform a mistake in a K

    3. Show that the K is void or voidable, or that it was subject to condition precedent

    4. Show subsequent modification or discharge of the written agreement.

V. Testimonial Evidence

  1. Competency of Witnesses: witness must pass test of basic reliability; but they are generally presumed to be competent until the contrary is established.

    1. Qualification under the Federal Rules

      1. Witness must have communicable personal knowledge AND

      2. Witness must declare that he will testify truthfully.

    2. Special groups

      1. Children may testify depending on capacity/intelligence as determined by the judge.

      2. An insane person may testify provided he understand the obligation to speak truthfully and he has the capacity to be truthful.

      3. Presiding judge and jurors may NOT testify

      4. Dead Man Act (state law): bars an interested party from testifying to a personal communication w/ a deceased when such testimony is against the deceased’s successor unless there is a waiver (rationale: fear of perjury).

  2. Form of Examination of Witness (Judge controlled)

    1. Leading questions generally improper on direct examination. But, permitted

      1. On cross-examination

      2. To elicit preliminary or introductory matter

      3. To refresh a witnesses’ memory

      4. When a witness is hostile.

    2. Other improper forms of questions

      1. Misleading (can’t be answered w/out making an unintentional admission)

      2. Compound (more than one question)

      3. Argumentative

      4. Conclusionary

      5. Cumulative

      6. Unduly harassing/embarrassing

      7. Calls for narrative or speculation

      8. Assumes facts not in evidence

    1. Answers that may be stricken

      1. Lacks foundation (witness has insufficient personal knowledge)

      2. Non-responsive (witness did not answer the specific question asked).

      3. Note: request must be made before W answers if the question is objectionable

    2. Witness can’t read her testimony from a prepared writing. But, a writing can be used:

      1. To refresh a witnesses recollection

        1. Can use anything to refresh memory – no authentication, hearsay, or best evidence problems b/c writing is not offered into evidence.

        2. Witness must say “I can’t remember.”

        3. The adverse party is entitled to have whatever writing is used to refresh a witness’s recollection produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness’s testimony into evidence.

= OR =

    1. Under the recorded recollection doctrine, if a witness still can’t remember, the writing itself may be read into evidence IF the proponent proves that:

      1. The witness had personal knowledge of the facts in the writing at one time

      2. The writing was made by the witness or under her direction, or it was adopted by the witness

      3. The writing was timely made when the matter was fresh in the witness’s mind;

      4. The writing is accurate; and

      5. The witness must be unable to remember all or part of the details.

Note: this is hearsay, but recorded recollection is an exception to the hearsay rule.

  1. Opinion Testimony

    1. Lay opinion: admissible if: (1) rationally based on the perception of the witness (personal knowledge), (2) the opinion is helpful to the trier of fact (no legal conclusions), and (3) not based on scientific, technical, or other specialized knowledge. Note: Lay opinions are NOT admissible re whether one acted as an agent or whether an agreement was made.

    2. Expert opinion: 4 basic requirements (as determined by the judge):

      1. Subject matter must be appropriate for expert testimony: the opinion must be sufficiently reliable that it is helpful to the trier of fact

        1. The methodology underlying the opinion must be reliable

        2. The opinion must be relevant (must fit the facts of the case).

      2. Witness must be qualified as an expert: qualifications need not be formal or academic. Skill or experience is sufficient.

      3. Expert must possess reasonable certainty or probability regarding the opinion: more than mere speculation.

      4. Opinion must be supported by a proper factual basis. Facts supporting the opinion must be either:

        1. Facts w/in the personal knowledge of the expert

        2. Facts not w/in personal knowledge, but supplied to the expert by the evidence

        3. Facts not w/in personal knowledge, not in evidence, as long as they are of a type that experts in that field would reasonably rely upon in making out of court professional decisions.

    3. Learned trestises

      1. Can be used to rebut or impeach your opponent’s expert IF

        1. Your opponent’s expert relies on that text or treatise

        2. Elicit an admission on cross-examination “are you familiar w/ X, do you consider it authoritative or reliable?”

        3. Call your own expert witness to testify that the text is reliable.

        4. Judicial notice.

      2. Can be used for its truth IF (exception to the hearsay rule):

        1. Reliance by your expert on direct examination

        2. Admission on cross-examination of your opposing expert

        3. Testimony of any expert OR

        4. Judicial notice

      3. Limitations: (1) expert must testify (at trial or deposition) unless judge takes judicial notice (2) treatise is admitted by being read to the jury. Text itself is not received as evidence.

  2. Cross-Examination

    1. Party has absolute right to cross-examine any witness who testifies live (if witness refuses to answer any cross-examination questions after testifying on direct, or dies before direct, direct testimony must be stricken).

    2. Limited to (i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness.

    3. Collateral (minor) Matters Doctrine: No extrinsic evidence is allowed to contradict a witness as to a collateral matter (anything whose only relevance is to show the contradiction). Cross-examiner is bound by the answers given by the witness.

  3. Credibility – Impeachment

    1. Accrediting your own witness

      1. No bolstering your own witness unless there has first been impeachment

      2. Prior statements of identification made by the witness are admissible (e.g. id in police line-up) (identifications are by definition NON-hearsay) (witness must be present in court and available for cross-examination).

    2. Impeaching your own witness – allowed if the witness is

      1. An adverse party or identified w/ an adverse party

      2. Hostile

      3. One whom the party is required by law to call

      4. Gives surprise testimony that is affirmatively harmful

    3. Impeaching your adversary’s witness: a witness may be impeached by either cross-examination (eliciting facts from the witness) or by extrinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting testimony) through:

      1. Prior inconsistent statements

        1. Generally admissible only to impeach – not for its truth

        2. But, if the prior inconsistent statement was given under oath AND at a trial, hearing, or in a deposition, such a statement IS admissible for its truth.

        3. Extrinsic evidence is admissible to prove the prior inconsistent statement, but must give witness an opportunity to explain or deny the statement (at any time)

        4. Prior inconsistent statements of a party = an admission → so it’s fully admissible for its truth (even when not made under oath).

      2. Evidence of bias: may be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness.

      3. Prior conviction of crime

        1. Must be a felony or a crime involvingdishonesty (deceit) or false statement (no discretion to exclude if involves dishonesty). Can’t use juvenile convictions or crimes from 10+ years since release.

        2. Extrinsic evidence of conviction is admissible (certificate of conviction and no foundation necessary).

      4. Specific acts of deceit or lying may be asked about in cross-examination

        1. E.g.: Did you lie on your 2005 income taxes?

        2. Good faith required, with reasonable basis for believing that the act was done by the witness.

        3. Act inquired about must involve deceit or lying

        4. No extrinsic evidence permitted. You must take the answer of the witness.

      5. Bad reputation or opinion for truth or veracity. May call the community mouth to the stand, to testify to the witness’s bad reputation. Can’t testify to specific instances of deceit or lying.

    4. Rehabilitating After Impeachment

      1. Explanation on re-direct

      2. Good reputation (opinion) for truth or veracity may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation for truth).

      3. Prior consistent statements may be used to rebut an express or implied charge of fabrication or improper influence of motive (must be pre-motive statement).

        1. Can’t use to rebut charge of prior inconsistent statement

        2. Admissible for its truth

  1. Privileges

    1. Attorney-Client: Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.

      1. Elements:

        1. The right parties

        2. Confidential communication (not physical evidence of pre-existing docs)

        3. Intent by client to establish a professional legal relationship (includes retainer agreement negotiations, even if representation is ultimately denied).

      2. Note: applies to the atty’s agent as well, including a doctor who examines the client at the attys request (e.g. to assess the extent of injury).

      3. Exceptions: situations where privilege does not apply (first 3 negate all prof privileges):

        1. Future crime or fraud

        2. When client or patient affirmatively puts communication in issue

        3. Dispute between the parties as to the professional relationship (actions for fees or malpractice).

        4. Where two or more parties communicate w/ attorney about a matter of common interest, no privilege between them

    2. Physician/Psychiatrist-Patient: The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.

      1. Key Elements:

        1. Patient must be seeking treatment

        2. Information acquired must be confidential and necessary for treatment.

      2. Note: doctor-patient privilege does not apply in federal courts. Nor does it apply where the patient puts medical treatment at issue (personal injury).

      3. Waiver of the physician patient privilege is common especially because of the Patient Litigation Exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

    3. Husband-Wife Spousal Privileges.

      1. Does not apply to intra-family injury cases (i.e. child abuse, incest)

      2. Dual Privilege:

        1. Spousal Immunity Privilege: one spouse can’t be forced to give adverse testimony against the other in a criminal case. Requirements:

          1. Valid marriage at the time of trial

          2. Protects against any and all testimony (including pre-marriage facts)

          3. Holder of privilege is witness spouse not party spouse

          4. Applies only in criminal cases

        2. Confidential Marital Communications Privilege: spouse can’t be required (or allowed without consent from other spouse), to disclose confidential communication made by the other during the marriage. Requirements:

          1. Marriage not necessarily at time of trial, but at time of protected communication.

          2. Protects only confidences not all testimony. So spouse can take the stand, but may be stopped from revealing marital communications.

          3. Either spouse holds the privilege, not just the witness.

          4. Privilege applies in both civil and criminal cases.

    4. Procedural Issue: federal evidence law applies in federal courts b/c it’s procedural. But, there are 3 exceptions where state evidence law applies in fed courts IF state substantive law applies:

      1. Presumptions and burdens of proof

      2. Competency of witnesses (state dead man’s statute)

      3. Privileges (if federal question case, federal common law applies)

  2. Exclusion and Sequestration of Witnesses: generally judge may order witnesses excluded from the courtroom (upon party request or on his own motion). But, the judge may not exclude: (1) a party or a designated officer/employee of a party, (2) a person whose presence is essential to the presentation of a party’s case, or (3) a person statutorily authorized to be present.

VI. Hearsay

  1. Definition: out of court statements offered for the purpose of establishing the truth of the matter asserted in the statement.

    1. 3 Questions

      1. Is it an out-of-court statement?

      2. What precisely is the out-of-court statement?

      3. Is it being offered for the purpose of establishing its truth?

    2. Rationale: it denies the opponent the opportunity to cross-examine the person whose perception, memory and sincerity are in issue. Where we only care about the witnesses perception, memory or sincerity (rather than the declarant) it’s not hearsay.

    3. Non-Hearsay

      1. Verbal Acts: words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.

      2. Out-of-Court statements offered to shows its effect on the hearer: to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the out-of-court statement.

      3. Out-of-Court statements to show declarant’s state of mind.

    4. Generally, a witnesses own prior statementsare also hearsay. But, certain prior statements are admissible:

      1. Prior inconsistent statement given under oath as part of a proceeding or deposition

      2. Prior consistent statement to rebut charge of recent fabrication or improper motive

      3. Prior statements of identification made by a witness on the witness stand.

    5. Party Admissions ≠ hearsay (statement of a party offered against the party), so they ARE admissible.

      1. Need not be against interest at time of making statement

      2. Need not be based on personal knowledge

      3. Can be in the form of a legal conclusion (“I was negligent”)

      4. Vicarious admission: a statement by an employee concerning a matter w/in the scope of her employment IS admissible against the employer if made during existence of the relationship.

  2. Exceptions to the Hearsay Rule

    1. Former testimony: testimony given in earlier proceeding by person now unavailable is admissible if (1) meaningful opportunity for cross; and (2) unavailability of the declarant.

      1. Meaningful opportunity: (1) same issue and motive, and (2) same identity of party (party against whom offered must have been a party in the first proceeding or, in civil case, at least in privity with party in first proceeding).

      2. Unavailability: Court exempts declarant from testifying due to privilege; declarant refuses to testify b/c of privilege or other reason; declarant’s memory fails; declarant is dead or sick; or proponent of statement cannot procure declarant’s attendance by process of other reasonable means.

    2. S

      Declarant must be unavailable

      tatements against interest: declaration of a person, now unavailable as a witness, against that persons’ pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or defeat a civil claim by declarant) at the time the statement was made. Requirements: 

      1. Statement must have been against interest when made

      2. Declarant must have personal knowledge of facts

      3. Declarant must be unavailable

      4. Does not have to be a party (distinguish party admissions).

    3. Dying declaration: Statement made by a declarant while believing his death is imminent. Requirements:

      1. Made under sense of impending death (need evidence that the declarant believed he was going to die)

      2. Declarant need not die but must be unavailable at time of trial

      3. Admissible in homicide or any civil cases

      4. Must concern cause or circumstances of impending death.

    4. Statements of personal or family history (e.g. birth, death, marriage) made by family member or one closely associated with the family.

    5. Statement of unavailable declarantoffered against party who procured the unavailability.

    6. Spontaneous statements (unavailability not required):

      1. Then existing state of mind when state of mind is in issue (“I believe I am the pope”)

      2. Statements of existing intent to do something in the future: admissible to infer that what was intended was done (“In ten days I will kill myself.”)

      3. Excited utterance: (1) startling event, (2) statement made under stress of excitement, (3) concerns the facts of the startling event. Look for nature of event, time lapse, language.

      4. Present-sense impression: a statement describing or explaining an event or condition made while the event was happening (“Spano’s at the door.”)

      5. Declaration of then existing physical condition: admissible by anyone who hears it (“It hurts!”).

      6. Declaration of past physical condition: statements made describing medical history. Admissible if: (1) made to medical personnel, (2) pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony).

    7. Business records: Records made as a memo of any business transaction is admissible if:

      1. The record is germane to business

      2. It appears that the record was made in the regular course of business

      3. The business record consists of matters w/in the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters.

      4. Entry made at or near the time of the transaction

      5. Authenticity established by the custodian (1) testifying that the record is a business record, or (2) certifying in writing that the record is a business record.

  3. Important Test Notes:

    1. Preliminary fact questions upon which admissibility depends are decided by the judge, and she is not bound by the rules of evidence to make this determination (i.e. she can use hearsay).

    2. You are entitled to impeach the credibility of a hearsay declarant, even when he’s absent, by any evidence which would be admissible for impeachment if the declarant had testified live.

    3. Mixing hearsay and writings: remember best evidence rule. Where a witness want to testify to a recorded message, which meets a hearsay exception, it is still inadmissible unless you satisfy the best evidence rule (i.e. explaining the absence of the recording itself).

  4. Constitutional Issues: Sixth Am gives the accused in a criminal case the right of confrontation. Therefore, out-of-court statements, which are “testimonial in nature” (made to law enforcement personnel for the use of investigation or prosecution of a crime) will be admissible against the accused in a criminal case ONLY IF:

    1. The declarant is unavailable AND

    2. The defendant has a prior opportunity to cross examine

    3. Exception: Does not apply if the prosecution demonstrates that the D had forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.

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