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Published: 2008-03-26

Summary of the Rules of Evidence



I. INTRODUCTION.

We can only cover both the federal and California law of evidence in a brief essay like this by a ruthless process of selection and compression. What we will cover can best be thought of as that essential kernel of the law of evidence that the trial lawyer must carry in his head.1

Our task would be impossible but for two important facts. First, all of you have studied the law of evidence before, either in a course on evidence or in preparation for the bar exam. Accordingly, most of the rules presented will already be familiar to you. What we will do here is to try to review, organize, and reinforce that law so that you can apply it with confidence when you need it.

Second, most of the rules of evidence need not be covered here because they are either so obvious that you already know all you need to know about them or they apply only in limited circumstances. For example, we would surely be wasting our time if we indulged in an extended discussion of the rule that evidence should be construed to achieve the ends of justice, and others like it. This and many other rules only state the obvious and will not be covered here. Rules that apply only in limited circumstances include ones like those relating to the scope of cross examination of a plaintiff in a case of sexual assault, a juror's incompetence to impeach his own verdict, and the proof of valuation of property. Evid. Code §§ 781, 1150, 810 et seq.; Fed. Rules Evid. 412, 606. You do not need to know those special rules unless you get a case where they apply. When that happens, it will be time enough to study them.

What is left after you eliminate all the rules that are obvious and all those that have only limited application are the rules that are used every day in ordinary cases and that are not trivial or obvious. These essential tools of survival must be thoroughly mastered. They will enable you to solve the vast majority of evidentiary problems that arise in preparing and trying your cases.

I do recommend, however, that you take the time to read whichever codification applies to your practice so you will know when you need to study one of the rules of limited application and so that you can gain confidence that there are not any gaps in your knowledge. California's Evidence Code is short and the Federal Rules of Evidence are shorter and, once we are done, I think that you will have an analytic framework that will allow you to read them easily and with understanding.

II. THE FOUR TYPES OF EVIDENCE.

There are four traditional types of evidence: real, demonstrative, documentary, and testimonial. Some rules of evidence apply to all four types and some apply only to some or one of them. First, we will cover general rules of admissibility that apply to all evidence. Then, we will cover foundational rules that relate to specific kinds of evidence. Finally, we will cover some special topics, like the form of examination, the hearsay rule, and the lay opinion rule, that frequently cause problems in the courtroom.

III. GENERAL RULES OF ADMISSIBILITY.

The basic prerequisites of admissibility are relevance, materiality, and competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.

Evidence is relevant when it has any tendency in reason to make the fact that it is offered to prove or disprove either more or less probable. Evid. Code § 210; Fed. Rules Evid. 401. To be relevant, a particular item of evidence need not make the fact for which it is offered certain, or even more probable than not. All that is required is that it have some tendency to increase the likelihood of the fact for which it is offered. Weighing the evidence is for the finder of fact, and although a particular piece of evidence, standing by itself, may be weak, it will be admitted unless it is otherwise incompetent or it runs afoul of an exclusionary rule. For example, if the fact to be proved is that the defendant bit off the plaintiff's nose in a fight, testimony by an eyewitness to the act would clearly be relevant, but so would testimony by a witness who heard the plaintiff and the defendant exchange angry words on the day before the fight, or even testimony by a witness who sold the defendant a disinfectant mouthwash shortly afterwards.

Evidence is material if it is offered to prove a fact that is at issue in the case. For example, if I offer the testimony of an eyewitness to prove that it was raining on the day of the signing of a contract, that evidence may be relevant to prove the fact for which it is offered, yet the fact that it was or was not raining may be immaterial to any of the issues in the case, which may turn entirely on whether one or both parties breached the contract.

The issues in the case are determined by the pleadings, any formal stipulations or admissions, and the applicable law. For example, if, in a case of breach of contract, the defendant has conceded that the plaintiff performed all his covenants, proof of that performance would no longer be material unless it were relevant to some other issue. Under both the California and federal rules, the concept of materiality is included in the concept of relevance. Evid. Code § 210; Fed. Rules Evid. 410.

Evidence is competent if the proof that is being offered meets certain traditional requirements of reliability. The preliminary showing that the evidence meets those tests, and any other prerequisites of admissibility, is called the foundational evidence. Evid. Code § 402, 403. When an objection is made that an answer to a question, a document, or a thing lacks a proper foundation, what the objector is really saying is that a showing of competence, or of another prerequisite of admissibility, has not yet been made. The modern trend in the law is to diminish the importance of the rules of competence by turning them into considerations of weight. See, e.g., Evid. Code § 700; Fed. Rules Evid. 601. The question of competence will be considered below for each category of evidence.

In general, if competent evidence is offered to prove a relevant and material fact, it is admissible even if it would have been improper to receive it for another purpose. Evid. Code § 355. For example, while evidence of prior bad acts is generally not admissible to show that a person acted similarly in the present case, it may be admissible to show motive, plan, intent, lack of mistake or, in federal court, to impeach a witness's credibility. Evid. Code § 1101(b); Fed. Rules Evid. 404(b). When evidence is received for a limited purpose, the party who thinks a jury may make improper use of that evidence is entitled, upon his request, to a limiting instruction. Evid. Code § 355.

However, where the value of evidence for its proper purpose is slight and the likelihood that it will be used for an improper purpose by a finder of fact is great, a court may, in its discretion, exclude the evidence even though it would otherwise be admissible. Evid. Code § 352; Fed. Rules Evid. 403. In this situation, the probative value of the evidence is said to be outweighed by its prejudicial effect.

Prejudice means improper harm. The fact that evidence may be extremely harmful to one party's case does not necessarily make it prejudicial. Courts also have discretion to exclude otherwise admissible evidence to prevent confusion, delay, waste of time, or the needless presentation of cumulative evidence. Evid. Code § 352; Fed. Rules Evid. 403.

IV. REAL EVIDENCE.

Real evidence is a thing the existence or characteristics of which are relevant and material. It is usually a thing that was directly involved in some event in the case. The written contract upon which an action is based is real evidence both to prove its terms and that it was executed by the defendant. If it is written in a faltering and unsteady hand, it may also be relevant to show that the writer was under duress at the time of its execution. The bloody bloomers, the murder weapon, a crumpled automobile, the scene of an accident--all may be real evidence.

To be admissible, real evidence, like all evidence, must be relevant, material, and competent. Establishing these basic prerequisites, and any other special ones that may apply, is called laying a foundation. The relevance and materiality of real evidence are usually obvious. Its competence is established by showing that it really is what it is supposed to be. Proving that real or other evidence is what it purports to be is called authentication. Evid. Code § 1400; Fed. Rules Evid. 901.

Real evidence may be authenticated in three ways--by identification of a unique object, by identification of an object that has been made unique, and by establishing a chain of custody. You only have to be able to use one of these ways, though it is prudent to prepare to use an alternate method in case the court is not satisfied with the one you have chosen.

The easiest and usually the least troublesome way to authenticate real evidence is by the testimony of a witness who can identify a unique object in court. For example, the curator of a museum may be able to testify that he is familiar with, say, Picasso's "Dames de Avignon" and that what has been marked as exhibit so-and-so is in fact that unfortunate painting. It is important to remember, however, that many more mundane objects may be amenable to this kind of identification. A unique contract, or one that has been signed, may be authenticated by a person who is familiar with the document or its signatures. A ring may have an inscription by which it can be identified. Even a manufactured object, like a wallet, may be identifiable by its owner after years of use have given it a unique personality.

The second method--identification in court of an object that has been made unique, is extremely useful since it sometimes allows a lawyer or client to avoid the pitfalls of proving a chain of custody by exercising some forethought. If a witness who can establish an object's relevance to the case marks it with his signature, initials, or another mark that will allow him to testify that he can tell it from all other objects of its kind, that witness will be allowed to identify the object in court and thus to authenticate it. Often, if a member of the lawyer's staff or another person early in the chain of custody marks the evidence, big problems can be avoided if a later link in the chain turns out to be missing.

The third and least desirable way to authenticate real evidence is by establishing a chain of custody. Establishing a chain of custody requires that the whereabouts of the evidence at all times since the evidence was involved in the events at issue be established by competent testimony.

The proponent of the evidence must also establish that the object, in relevant respects, has not changed or been altered between the events and the trial. This can sometimes be a tall order, or can require the testimony of several witnesses. If there is any time from the events in question to the day of trial during which the location of the item cannot be accounted for, the chain is broken. In that case, the evidence will be excluded unless another method of authentication can be used.

V. DEMONSTRATIVE EVIDENCE.

Demonstrative evidence is just what the name implies--it demonstrates or illustrates the testimony of a witness. It will be admissible when, with accuracy sufficient for the task at hand, it fairly and accurately reflects that testimony and is otherwise unobjectionable. Typical examples of demonstrative evidence are maps, diagrams of the scene of an occurrence, animations, and the like. Because its purpose is to illustrate testimony, demonstrative evidence is authenticated by the witness whose testimony is being illustrated. That witness will usually identify salient features of the exhibit and testify that it fairly and accurately reflects what he saw or heard on a particular occasion, such as the location of people or things on a diagram.

For some time in California, and in some other states, there was a controversy over whether photographs were only demonstrative in nature or whether they had evidentiary value independent of the testimony of the witness who authenticated them. This problem was particularly pressing when there was no witness who could confirm what the camera saw as, for example, where crucial identifying photographs were taken by automatic cameras.

Fortunately, the courts in California and most other states seem to have reached the only sensible solution, which is that photographs can be either real or demonstrative evidence depending on how they are authenticated. When a photograph is authenticated by a witness who observed what is depicted in it and can testify that it accurately reflects what he saw, the photograph is demonstrative evidence. When it is authenticated by a technician or other witness who testifies about the operation of the equipment used to take it, it is real evidence and is, in the language of the courts, a "silent witness."

VI. DOCUMENTARY EVIDENCE.

Documentary evidence is often a kind of real evidence, as for example where a contract is offered to prove its terms. When a document is used this way it is authenticated the same way as any other real evidence--by a witness who identifies it or, less commonly, by witnesses who establish a chain of custody for it. However, because they contain human language, and because of the historical development of the common law, documents present special problems not presented by other forms of real evidence, such as when they contain hearsay.

When dealing with documentary evidence, it is a good idea to ask yourself four questions:

1. Is there a parol evidence problem?

2. Is there a best evidence problem?

3. Is there an authentication problem?

4. Is there a hearsay problem?

The parol evidence rule, which bars the admission of extrinsic evidence to vary the terms of a written agreement, is usually considered a matter of substantive law, not of rule of evidence. Accordingly, we will not deal with it here.

As has been noted above, documents can be authenticated the same way as any other real evidence. Evid. Code § 1400, 1401, 1410-1416. Material alterations must be accounted for. Evid. Code § 1402. There are also specifically approved methods of authenticating documents listed in the Evidence Code, including the submission to the finder of fact of a known exemplar of a signature for comparison with the signature on a disputed document, Evid. Code § 1417, authentication by evidence of a reply, Evid. Code § 1420, and authentication by content, Evid. Code § 1421.

In addition, some documents, such as certified copies of public records, official documents, newspapers, periodicals, trade inscriptions, acknowledged documents to prove the acknowledgment, certificates of the custodians of business records, and certain commercial paper and related documents are, to one extent or another, self authenticating under either California law or the federal rules. Evid. Code § 1450 et seq., 1530 et seq., 1562; Fed. Rules Evid. 901, 902.

We will cover the hearsay rule as a separate topic.

The best evidence rule provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Evid. Code § 1500 et seq.; Fed. Rules Evid. 1002. In California, testimonial and other secondary evidence of the document's content is also generally forbidden. Evid. Code §§ 1500, 1508.

The best evidence rule arose during the days when a copy was usually made by a clerk or, worse, a party to the lawsuit. Courts generally assumed that, if the original was not produced, there was a good chance of either a scrivener's error or fraud. Now that "copy" usually means "photocopy," the chance of a copy being in error, as opposed to simply illegible, is slight. In addition, courts are reluctant to require needless effort and delay where there is no dispute about the fairness and adequacy of a photocopy.

Accordingly, both California law and the federal rules allow the use of mechanically produced duplicates unless a party has raised a genuine question about the accuracy of the copy or can show that its use would be unfair. Evid. Code §§ 1500 et seq.; Fed. Rules Evid. 1003. However, there is always a danger of a party questioning a document, so it is important to remember that, unless you have a stipulation to the contrary, or your document fits one of the exceptions listed in the statute, you must be ready to produce originals of any documents involved in your case or to produce evidence of why you can't.

Under both California law and the federal rules, compilations or summaries of voluminous records may be received where the originals are available for examination by the other parties. Evid. Code § 1509.

VII. TESTIMONIAL EVIDENCE.

Testimonial evidence is the most basic form of evidence and the only kind that does not usually require another form of evidence as a prerequisite for its admissibility. See Evid. Code § 702(b); Fed R. Evid. 602. It consists of what is said in the court at the proceeding in question by a competent witness.

In general, a witness is competent if he meets four requirements:

1. He must, with understanding, take the oath or a substitute. Evid. Code §§ 710, 701; Fed. Rules Evid. 603.

2. He must have personal knowledge about the subject of his testimony. In other words, the witness must have perceived something with his senses that is relevant to the case. Evid. Code § 702; Fed. Rules Evid. 602.

3. He must remember what he perceived.

4. He must be able to communicate what he perceived. Evid. Code § 701(a)(1).

There are other rules of competence that relate to special circumstances, such as the rule that a juror is generally incompetent to impeach his own verdict or that, at least in federal court, a judge is not competent to testify in a trial over which he is presiding, but these and other rules like them rarely come up in practice. Evid. Code §§ 1150, 703; Fed. Rules Evid. 606, 605.

In addition, in keeping with the modern trend to view issues that were previously thought to involve questions of competence, which could result in the exclusion of evidence, as presenting instead questions of weight for the finder of fact to evaluate, the rules of competence are very liberally construed and will rarely result in the exclusion of evidence. For example, the requirement that a witness take the oath or a substitute permits virtually any kind of affirmation by which the witness, in effect, promises to tell the truth. Evid. Code § 165. The "understanding" of the oath or affirmation that is required can be that of a small child or mentally disabled person. Evid. Code § 701, 710; People v. McIntyre (1967) 256 Cal.App.2d 894, 898; 64 Cal. Rptr. 530, 533. The communication that is required may be in writing or through an interpreter, whether of spoken or of sign language. Evid. Code § 701, 752, 754; Fed. Rules Evid. 604. In addition, deficiencies in knowledge generally affect only weight, so long as the witness perceived something relevant.

Even if a witness forgets what he is supposed to be testifying about, the law allows you to supplement his memory in at least four ways. First, you can ask for a recess so that the witness can walk around and calm his nerves. Second, you can ask a leading question to try to refresh his recollection. This is an exception to the usual rule against the use of leading questions during direct examination.

Third, you can attempt to refresh the witness's recollection in another way. This method is commonly called "past recollection refreshed." Before you can try to refresh the witness's memory he must say that he can't remember the fact you are trying to elicit. Then he must say that the refreshing object might help him remember. Anything that the witness says might help him may be used--his own notes, notes or documents prepared by others, a videotape of events, the smell of a decedent's perfume, a sno-cone, or a recording of the Beach Boys singing "Surf City USA."

If the memory refresher is a writing, it must be provided to opposing counsel. This is true whether the witness looks at it on the stand or before he testifies, as for example, during preparation by counsel. In California, the unexcused failure to produce writings that have been used by a witness to refresh his memory will result in his testimony being stricken! Evid. Code § 771. The witness is permitted to look at, smell, listen to, touch, or taste the memory refresher. When he is done, you withdraw it from him and ask whether he can now remember the fact you are interested in. If, after all this, the witness remembers what you are after, he is permitted to answer. Fed. Rules Evid. 612.

The memory refreshing thing is not evidence and cannot be received as such, though it must be made available to the opposing party and may be used by him for cross examination or for any other proper purpose, including the introduction of portions of it that relate to the witness's testimony. Fed. Rules Evid. 612. With present recollection refreshed, it is the answer of the witness, after his memory has been refreshed, that is evidence. Of course, your adversary may comment on the frailty of your witness's memory when he argues about the weight to be attached to the testimony.

Even if your efforts to fan the embers of memory with memory refreshers fail to produce a flame, there is still hope. If the witness has previously recorded, directed the recording of, or verified the accuracy of a writing or other portrayal of the fact you are interested in, you can use the fourth method of aiding or supplementing his memory by offering the writing as a past recollection recorded. Evid. Code § 1237. First, the witness must say that he no longer remembers the fact. Then you try to refresh the witness's memory with the writing or other recording you intend to use. If you can refresh the witness's memory, he will be permitted to answer the question. If the writing fails to refresh the witness's memory, he must identify it as one that he made or saw when he did remember the fact in question and that he knew then that the writing was accurate. Evid. Code § 1237. With past recollection recorded, the witness never answers the question and the writing is the evidence.

Because it is an out of court statement that is offered to prove the truth of its content, a past recollection recorded is hearsay. However, it is admissible under its own exception to the hearsay rule. Evid. Code § 1237(a); Fed. Rules Evid. 803(5). In addition, like any other documentary evidence, a past recollection recorded must meet the requirements of the best evidence rule. Unlike other documentary evidence, while a past recollection recorded may be read into the record, it may not be shown to the jurors or taken with them when they retire to deliberate. Id.

Bias, interest, prejudice, and other grounds to doubt the credibility of a witness go only to the weight of his testimony and do not affect his competence. In particular, it is not a valid objection to say that a statement by a witness is "self-serving." Presumably, most or all statements by party witnesses are or are intended to be self serving.

VIII. FORM OF EXAMINATION.

On direct examination, you are generally not permitted to ask leading questions. Fed. Rules Evid. 611(c). Direct examination is questioning by the lawyer who calls the witness to testify concerning matters that into which he is the first party to inquire. Evid. Code § 760. A leading question is one that suggests an answer or substitutes the words of the lawyer for those of the witness. These are questions like "You told the defendant that you were relying on him for advice, didn't you?"

Questions that call for an answer of "yes" or "no" are not necessarily leading. For example, most courts would allow you to ask a question like "Did you ever tell the defendant that you wanted the goods?" However, questions that call for a yes or no answer can be leading if they form a pattern that leads the witness through his testimony or reduces the witness to adopting the descriptions of his lawyer. For example, the following is clearly leading:

Q: When you entered the room did you see the defendant there?

A: Yes.

Q: Was he visibly agitated?

A: Yes.

Q: Did you ask him whether he intended to deliver the goods you had ordered?

A: Yes.

Q: Did he tell you that he had no intention of doing so?

A: Yes.

Other cases are not so clear:

Q: When you met the defendant that night, what was his physical condition?

A: He was swaying from side to side.

Q: Did he seem to you to be drunk?

A: Yes.

As you can see, in many ways, leading is a matter of degree, and borderline cases are matters of judgment and within the court's discretion, as is the question of when to allow such leading questions on direct. Most of the time, when an objection is sustained to a leading question, it is not difficult to rephrase the question to make it unobjectionable:

Q: When you saw the defendant that night, was he drunk?

Counsel: Objection. Leading.

Court: Sustained.

Q: What was the defendant's physical condition when you saw him?

A: He was drunk as a skunk.

As this last exchange shows, not only is eliciting testimony with nonleading questions proper, it is also usually more effective to let the witness tell the story if he can.

Leading questions are permitted on direct in several circumstances. We have already discussed the propriety of a leading question to refresh a witness's recollection. Leading questions are also usually permitted in dealing with matters of background, or to direct the witness's attention to a particular time and place or to a particular aspect of a situation. For example, the following should usually be permitted:

Q: Were you at Sloppy Louie's on the evening of the twenty fifth of January?

A: Yes.

Q: Did you see the defendant's car parked outside?

A: Yes.

Q: Was there anyone inside the car?

A: Yes.

Q: Who?

A: The defendant, that dirty rotten skunk.

Counsel: I move to strike everything after "the defendant" as unresponsive, irrelevant, incompetent, immaterial, and prejudicial.

Court: So stricken.

In the example above, while part of the witness's answer was objectionable for other reasons, the questioning would probably not be considered improper, although the first three questions might be considered leading.

Leading questions may be allowed where, in the judge's sound discretion, they will help to elicit the testimony of a witness who, due to tender age, incapacity, or limited intelligence, is having trouble communicating his evidence. Fed. Rules Evid. 611(c). They are also allowed when examining an adverse or hostile witness. Evid. Code § 776; Fed. Rules Evid. 611(c). Witnesses are adverse or hostile when their interests or sympathies are likely to lead them to resist testifying forthrightly or who fall into certain defined categories. Generally, an adverse party or a witness identified with an adverse party is considered hostile for the purposes of this rule. Evid. Code § 776; Fed. Rules Evid. 611(c).

The converse of a leading question is one that calls for a narrative answer. Questions that require a witness to tell a story without responding to specific questions deprive your opponent of the opportunity to interpose an objection before the witness says something that is inadmissible. They often also elicit rambles that waste the time of the court and the parties. The following is an example:

Q: What happened next?

A: Then Smittie told me about how he had seen the defendant attack the plaintiff from behind with a baseball bat.

Counsel: I move to strike that entire answer as hearsay.

Court: So stricken. The jury is instructed to disregard the last answer.

Of course, the damage may already be done.

The problem with the "leading" rule and "narrative" rule is that, if they are both interpreted broadly, they can completely prevent any meaningful examination. This is an area where the advocate must be alert to the judge's preferences.

On cross examination, leading questions are generally permitted and often necessary or desirable. Evid. Code § 767; Fed. Rules Evid. 611(c). Harassment of the witness is not. Evid. Code § 765; Fed. Rules Evid. 611(a).

Cross examination is only permitted to inquire into subjects that were raised upon direct, including credibility. Evid. Code § 761; Fed. Rules Evid. 611(b). If the cross examiner strays into a new area, the judge has the discretion to permit him to do so, in effect permitting him to present part of his case out of turn for the sake of efficiency or other good cause. Evid. Code § 320, 772; Fed. Rules Evid. 611(b). However, for the purposes of eliciting the new matter, the witness is considered to have been adopted by the cross examiner and counsel is therefore required to confine himself to the kind of questioning permitted for direct examination. Id. If, on redirect, the original sponsor of the witness explores the new subjects, he is permitted the same latitude that is allowed in a normal cross examination.

IX. THE LAY OPINION RULE.

Witnesses are required to give their answers in the form of statements of what they saw, heard, felt, tasted, or smelled. They are generally forbidden to express opinions or draw conclusions. As anyone who gives the matter any thought soon discovers, this distinction between fact and opinion is not always clear. In addition, many witnesses find it impossible to give their testimony in the required form, and certain perceptions are very difficult to communicate without using language that suggests judgments and opinions. Osborn v. Mission Ready Mix (1990) 224 Cal. App.3rd 104, 112-113; 273 Cal Rptr. 457, 461-462. As a result, both California law and the federal rules have substantially relaxed the rule against lay opinions to facilitate the reception of evidence.

In general, a person who is not testifying as an expert will be allowed to testify in the form of an opinion if the opinion is both rationally based on his perception and helpful to an understanding of his testimony. Evid. Code § 800; Fed. Rules Evid. 701. In addition to this general rule, opinions by a competent layperson on certain subjects are specifically permitted by rule, statute, or cases. Some of these are:

1. A person's identity, whether identified by appearance, voice, or otherwise. Corey v. Corey (1964) 230 Cal.App.2d 813, 826, 41 Cal.Rptr. 379, 387; Fed. Rules Evid. 901(b)(4)-(6).

2. A person's sanity. Evid. Code § 870.

3. Quantities, such as speed, distance, and size. Rash v. City and County of San Francisco (1962) 200 Cal. App.2d 199, 204, 19 Cal.Rptr. 266, 269.

4. Demeanor, mood, or intent. People v. Deacon (1953) 117 Cal.App.2d 206, 210, 255 P.2d 98; People v. Harris (1969) 270 Cal.App.2d 863, 872, 76 Cal.Rptr. 130, 137 (testimony that a person was "trying" to break up a fight).

5. Intoxication or sobriety. In re Joesph G. (1970) 7 Cal App.3d 695, 704, 764, 87 Cal.Rptr. 25, 31.

6. Physical condition of health, sickness, or injury. Waite v. Goodfrey (1980) 106 Cal.App.3d 760, 764, 163 Cal.Rptr. 881, 883.

7. Ownership. Strauss v. Dubuque Fire & Marine Ins. Co. (1933) 132 Cal.App. 283, 294, 22 P.2d 582.

8. The value of one's own property. Evid. Code § 813; Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921, 114 Cal.Rptr. 622, 630.

9. Identification of handwriting. Evid. Code § 1416; Fed. Rules Evid. 901(b)(2).

Opinion testimony is not objectionable merely because it embraces the ultimate issue to be decided. Evid. Code § 805; Fed. Rules Evid. 704(a). This is true notwithstanding a common misunderstanding to the contrary among some old timers.

X. ACCREDITING AND DISCREDITING A WITNESS.

A witness may not be accredited until he has first been impeached. Under both California law and the federal rules, any party may impeach any witness at any time. Evid. Code § 785; Fed. Rules Evid. 607.

A witness's credibility could traditionally be impeached by inquiry into any of nine areas. The first four of these nine areas relate to the requirements of competence. They are:

1. The firmness and sincerity of the witness's belief that any violation of his oath could have eternal consequences. This method is probably no longer available. See Fed. Rules Evid. 610.

2. The quality of witness's perception or ability to perceive. Evid. Code § 780(c)-(d)

3. The witness's ability to remember. Evid. Code § 780(c).

4. The accuracy of the witness's communication of what he perceived. Evid. Code § 780(c). "Isn't it a fact that when you said that you were coerced, all you meant was that my client asked you to do it?"

The cross-examiner may always inquire into these four areas without having any basis whatever for believing that there is any infirmity in the witness's testimony. For example, one could ask a witness "Isn't it a fact that without your glasses you are legally blind?" without having any reason to believe that the witness's eyesight is anything but perfect, though this might not be wise.

In addition, extrinsic evidence, which in these circumstances is evidence other than the answers of the witness whose testimony is being impeached, may always be offered to prove facts relevant to these first four methods of impeachment. Thus, whether or not you ask a witness whether it was too dark for him to see, and whether or not he denies it, you may call another witness or offer other evidence to show that it was in fact too dark for him to have seen what he says he did.

The other five ways to attack credibility are to attempt to show

1. bias, prejudice, interest, or corruption,

2. certain criminal convictions,

3. prior bad acts,

4. prior inconsistent statements, or

5. untruthful character.

The first four of these methods require that, before the witness is questioned concerning the relevant facts, counsel have a good faith basis to believe that the facts to be asked about are true. These methods differ with respect to when extrinsic evidence is permitted to prove the facts based upon which the witness's credibility is being attacked.

It is error not to allow inquiry into possible bias, prejudice, interest, or corruption. Evid. Code § 780 (f). In addition, extrinsic evidence of bias is always admissible.

Under the federal rules, a witness may generally be questioned about criminal convictions when the crime was punishable by a sentence of more than a year or involved fraud or false statement. There are other limits relating to the age of the conviction, to a witness who is also the accused in a criminal case, and to juvenile adjudications that you should learn before you attempt to offer such evidence.

In California, a witness may generally be questioned about criminal convictions only if the convictions are for felonies and the witness has not been pardoned for innocence, been granted a certificate of relief from civil disabilities, or obtained other similar relief. Evid. Code § 788. Under both sets of rules, if the witness denies a criminal conviction, it may only be proved by offering a certified record of the conviction.

The federal rules allow questions about prior bad acts of a witness to impeach credibility where, in the court's discretion, they are probative of truthfulness. Fed. Rules Evid. 608(b). However, if the witness denies the act, it may not be proved by other evidence unless the act to be proved has some relevance to the case that is independent of its bearing on credibility. Under California law, inquiry concerning prior bad acts that have not resulted in a criminal conviction is not permitted to attack the credibility of a witness. Evid. Code § 787.

Questions concerning prior inconsistent statements are permitted under both federal and California law under the following conditions:

1. The questioner must have a good faith basis for believing that the inconsistent statement was made.

2. The witness must be reminded of the time, place, and circumstances of the statement. This requirement is dispensed with in California. Evid. Code § 769.

3. In federal court, if the statement is written, a copy of it must be provided to opposing counsel upon request. Fed. Rules Evid. 613. In state court, counsel is only entitled to a copy if the writing is shown to the witness. Evid. Code §§ 768, 769.

If the witness denies making the inconsistent statement, the federal rules allow other evidence to be offered to prove it if

1. the witness has first had an opportunity to explain or deny it and counsel for the other parties have had an opportunity to ask about it, and

2. the statement is about a fact relevant to a material issue in the case, other than credibility.

Fed. Rules Evid. 613(b). California adds the requirement that the witness not have been excused and therefore be available for further examination. Evid. Code § 770. As has been said, if the prior inconsistent statement is not relevant to a material issue in the case, other than credibility, extrinsic proof of it is not permitted. In that case, the courts say that the proffered proof of the inconsistent statement is "collateral."

The last method of impeachment is to show that the witness has a character of untruthfulness. This is an exception to the general rule that character may not be proved to show action in conformity with it. Evid. Code § 1101(c). There are three possible ways to prove a character of untruthfulness--testimony of specific instances of untruthfulness, the opinion of another witness who knows the target witness concerning his honesty, and testimony concerning the target witness's reputation in the community for truthfulness. The federal rules allow all three methods. Fed. Rules Evid. 405, 608. California allows opinion and reputation evidence but not evidence of specific dishonest acts. Evid. Code § 1100, 786.

After a witness's credibility has been attacked, he may be accredited any of three ways:

1. He may explain any damaging facts.

2. Where the witness's character for truthfulness has been impugned, testimony of another witness concerning his opinion of the honesty of the target witness or of the target witness's reputation in the community for honesty may be offered. Evid. Code § 790; Fed. Rules Evid. 608(a).

3. Where the witness's testimony has been attacked as a recent fabrication, extrinsic evidence may be offered of a prior consistent statement made before there was a motive to lie. Evid. Code § 791(b); Fed. R. 801(d)(1). California also allows the use of such a prior consistent statement where a prior inconsistent statement has been received to attack credibility whenever the consistent statement was made before the allegedly inconsistent statement. Evid. Code § 791(a).

The testimony of witnesses used to impeach the veracity of another witness may be impeached in the same ways as that of other witnesses. In particular, where a witness has offered an opinion of the honesty or reputation for honesty of another witness, the character witness may be asked whether he knew of, or whether his opinion would have been influenced by, knowledge of various alleged misdeeds of the target witness. Fed. Rules Evid. 608.

XI. CHARACTER EVIDENCE.

Above we have discussed the impeachment of a witness through another witness who testifies concerning the character for veracity of the first witness. This is an exception to the general rule that evidence of character is not admissible to show action in conformity with it. Evid. Code § 1101; Fed. Rules Evid. 404.

While character cannot be proved to show action on a particular occasion in conformity with it, habit can. Evid. Code § 1105; Fed. Rules Evid. 406. Character is a generalized quality usually attributed to a person, such as truthfulness, violence, drunkenness, and the like. A habit is a specific, regular, and consistently repeated behavior, such as a practice of always locking one's doors. People v. Charles G. (1979) 65 Cal.App.3d 62, 66, 156 Cal.Rptr. 832, 834. Of course, some qualities of character can be associated with a habit, such as a tendency to drunkenness with a habit of getting drunk every Saturday night, so this distinction can at times be difficult.

While, in a civil case, character generally cannot be proved to show action on a particular occasion in conformity with it, character may be proved where it is directly in an issue or is put in issue in a particular case. Evid. Code § 1101(b). As we have discussed, a witness's character for veracity is put in issue when he takes the stand. A plaintiff's character or reputation for violence may be an issue in a case of assault where the defendant claims self defense and is trying to show that he was in reasonable fear of harm. A plaintiff's character and reputation may also be in issue in an action for slander or libel where the defendant attempts to show that the plaintiff's reputation was already so bad that he could not have suffered any harm from the disparaging statement. Many other such cases could be cited, but you will know it when you have one.

Character other than character for truthfulness when used to impeach or accredit a witness may be proved in the same ways as is character for truthfulness of a witness, except that California's proscription of proof of specific bad acts when impeaching a witness does not apply to proof of character for other purposes. Evid. Code § 786, 1100. This kind of character witness may be questioned in the same ways as a witness to the character for truthfulness of a witness and he may be impeached in the same ways.

The only exceptions to the rule that character may not be proved to show action in conformity with it, other than the exception for impeaching a witness, relate to criminal cases. The first one is that, in a criminal case, a defendant can call character witnesses to testify that his character was inconsistent with the acts with which he is accused. Evid. Code § 1102; Fed. Rules Evid. 404(a)(1). When a defendant calls such a character witness, he puts his character for the traits about which the character witness testifies in issue. Then, and only then, the prosecutor may offer his own witnesses to the defendant's bad character for the same traits to show that he acted in conformity with that character. Evid. Code § 1102; Fed. Rules Evid. 404(a)(1). A criminal defendant may also offer evidence of the character of a victim of a crime to show action in conformity with it. Evid. Code § 1103; 404(a)(2). When he does so, the prosecutor may respond in kind. Id.

The different kinds of character evidence are a perennial source of confusion, and care must be taken to keep them distinct. The character of truthfulness of any witness, including a criminal defendant, is placed in issue when he testifies, and is received to show action in conformity with it. The character of a criminal defendant or his alleged victim for other traits of character to show action or nonaction in conformity with it is put in issue only when the defendant calls a character witness. The character of other persons can be in issue in a variety of ways, but it cannot be used to show action in conformity with it.

XII. THE RULE AGAINST HEARSAY.

The rule against hearsay is simply stated, sometimes confusing to apply, and riddled with exceptions. Evid. Code § 1200(b); Fed. Rules Evid. 802. You all know it. Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. Evid. Code § 1200(a); Fed. Rules Evid. 801(c). A statement can be in words or conduct that is intended by the actor as a substitute for words. Evid. Code § 225. The first step in any analysis of possible hearsay is the determination of whether the statement being offered is in fact hearsay. If the statement is not hearsay, the analysis ends. If the statement is hearsay, step two is a determination of whether the hearsay statement fits into one of the exceptions to the hearsay rule.

Since evidence of an out of court statement that is used to prove something other than the truth of its content is not hearsay, whether a statement is hearsay may depend on why it is being offered. If a statement has a possible use as hearsay and another nonhearsay purpose, it is generally admissible subject to a limiting instruction if requested, and subject to the court's discretion to keep it out if the judge believes that its prejudicial effect outweighs its probative value. As a result, the following out of court statements are not hearsay:

1. "Help!" Help is not a statement about a fact, it is a cry for assistance and cannot be either true or false. Whether, even if it were hearsay, it would be subject to the exception for an excited utterance is beside the point.

2. "I accept your offer." This is also not a statement of fact that can be true or false. In, a contract action, the issue would not be whether these words were true, but whether they were said.

3. "Jonesie is a low down rotten scoundrel." If offered to show that the speaker had a motive to kill Jonesie, rather than to show that Jonesie is in fact a low down rotten scoundrel, evidence of this statement would not be hearsay. If the evidence were offered to prove that Jonesie is a scoundrel, it would be hearsay, and probably also objectionable on other grounds.

Even if a statement is found to be hearsay, it may be admissible under one of the many exceptions to the hearsay rule. The federal rules contain at least 27 explicit ones, depending on how you count. A few of them may be used only when the declarant is unavailable, the remaining 24 are always available. Fed. Rules Evid. 803, 804. In addition, the federal rules arbitrarily define some kinds of hearsay statements as nonhearsay. Fed. Rules Evid. 801(d).

One of the federal exceptions is the well known catchall provision. This provision, which does not require that the declarant be unavailable to testify, says that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it has equivalent guarantees of trustworthiness, it is offered to prove a material fact, it is more probative than other reasonably obtainable evidence, its admission would serve the interests of justice, and the other parties have been given notice of its intended use. Fed. Rules Evid. 803(24).

California's evidence code also recognizes many exceptions to the hearsay rule, and many more can be found in the cases. However, while California's appellate courts enjoy the right to recognize new exceptions to the hearsay rule, no catchall provision similar to Federal Rule 803 has ever been recognized.

Obviously, we don't have time to examine the substance of either the federal or state exceptions in detail, but you should at least read their descriptions in the federal rules and the Evidence Code.

In the federal rules, the kinds of statements defined as nonhearsay are:

1. Prior statements by a witness that are inconsistent with his present testimony and that were made under oath.

2. Prior statements by a witness that are consistent with his present testimony and are offered to rebut a charge of recent fabrication. See also Evid. Code § 1236.

3. Statements consisting of an out of court identification of a person. See also Evid. Code § 1238.

4. A statement by a party opponent, or a person authorized to speak for or the party, or an agent of the party concerning a matter within the scope of the agency, or a statement of a coconspirator in furtherance of the conspiracy. Also such a statement made by another when adopted by one of the foregoing. See also Evid. Code §§ 1220-1223.

Fed. Rules Evid. 801(d).

The 24 exceptions in the federal rules that do not require a showing that the declarant is unavailable are listed below. Analogous provisions in California's Evidence Code are also noted.

1. Statements about the declarant's present sense impressions. Evid. Code §§ 1250, 1252.

2. Excited utterances or spontaneous statements. Evid. Code § 1240.

3. Statements about the declarant's then existing mental, emotional, or physical condition. Evid. Code §§ 1250, 1252.

4. Statements made by the declarant for the purpose of medical diagnosis or treatment.

5. Past recollections recorded. Evid. Code § 1237.

6. Business records, including those of a public agency. Evid. Code §§ 1271, 1280.

7. Evidence of the absence of a business record or entry. Evid. Code § 1272.

8. Certain public records and reports. Evid. Code §§ 1282, 1283.

9. Records of vital statistics. Evid. Code § 1281.

10. Statements of the absence of a public record or entry. Evid. Code § 1284.

11. Records of religious organizations concerning personal or family history. Evid. Code § 1315

12. Marriage, baptismal, and similar certificates. Evid. Code § 1316.

13. Family records concerning family history. Evid. Code § 1312.

14. Recorded documents purporting to affect interests in land. Evid. Code § 1600.

15. Statements in other documents purporting to affect interests in land and relevant to the purpose of the document. Evid. Code § 1330.

16. Statements in authentic ancient documents (at least 20 years old). Evid. Code § 1331 (at least 30 years old).

17. Market reports, commercial publications, and the like. Evid. Code § 1340.

18. Learned treatises used to question an expert witness.

19. Reputation concerning family history. Evid. Code §§ 1313, 1314.

20. Reputation concerning boundaries or general history. Evid. Code § 1320, 1322.

21. Reputation of a person's character. Evid. Code § 1324.

22. Evidence of a judgment of conviction for certain purposes. Evid. Code § 1300 (felonies only).

23. Judgments of a court concerning personal history, family history, general history, or boundaries, where those matters were essential to the judgment.

24. The catchall rule.

Fed. Rules Evid. 803.

The federal exceptions that do require proof that the declarant is unavailable are:

1. Former testimony of a witness offered against a party where that party, or a predecessor in interest with similar motives, had an opportunity to question the declarant. See also Evid. Code §§ 1290, 1291, 1292.

2. Dying declarations. See also Evid. Code § 1242.

3. Statements against interest. See also Evid. Code § 1224, 1225, 1230.

4. Statements by certain persons of personal or family history. See also Evid. Code § 1310, 1311. Fed. Rules Evid. 804.

Most of California's hearsay exceptions are contained in Sections 1220 through 1350 of the Evidence Code. You should read these sections, since even where a similar exception is recognized under both sets of rules there are often differences in the scope of the exceptions. California law does not have exceptions that are as broad as the federal exceptions for learned treatises or as the catchall provision. However, it does have additional exceptions, not explicitly found in the federal rules, for the following:

1. Evidence of a statement by a minor child if offered in certain actions against a person alleged to have injured the child. Evid. Code § 1226, 1228.

2. Evidence of a statement by the deceased in a wrongful death action. Evid. Code § 1227.

3. All prior inconsistent statements of a witness offered in accordance with required procedures. Cal. Evid. § Code 769, 1235.

4. Statements made by the declarant to explain or qualify his conduct and made while he is engaged in the conduct. Evid. Code § 1241.

5. Statements of the declarant's prior mental or physical state, including his intentions, if the declarant is unavailable and that prior mental or physical state is an issue in the suit. Evid. Code § 1251, 1252.

6. Certain statements of a declarant in an action against his estate. Evid. Code § 1261.

7. Judgments determining the liability, obligation, or duty of a third person to prove the existence of that liability, obligation, or duty. Evid. Code § 1302.

8. Statements concerning the family history of another where the declarant is unavailable under certain circumstances. Evid. Code § 1311.

9. Statements concerning boundaries. Evid. Code § 1323.

10. Certain statements in serious felony prosecutions. Evid. Code § 1350.

11. Certain statements by unavailable declarants concerning injuries inflicted on them. Evid. Code § 1350.

Sometimes a lawyer will want to present evidence that consists of multiple levels of hearsay. For example, suppose I want to introduce a patient's hospital file to show that when he was struck by the defendant he began bleeding from the head. The hospital's file, which is what I want to offer, has a note by the staff physician on duty saying that, when the patient came to the emergency room for treatment, he told the staff physician that when he was hit by the defendant he began bleeding profusely from the head. The only live witness I have is a records clerk from the hospital.

My evidence in this case consists of double hearsay. The hospital record is an out of court statement offered to prove the truth of its content--what the patient told the emergency room physician. In addition, even if I could call the physician as a witness, his testimony concerning what the patient told him would also be hearsay, since it would be offered to show that the patient did in fact start bleeding when the defendant hit him. Thus, I have one hearsay declaration--the patient's statement about what happened to him--wrapped in another hearsay declaration--the doctor's statement about what the patient said.

The analysis for multiple hearsay is simple if it is taken one step at a time. The rule is that, in order for multiple hearsay to be admissible, there must be an exception to the hearsay rule that is applicable to each level of the hearsay. Evid. Code § 1201; Fed. Rules Evid. 805. The best way to start the analysis is to imagine the ultimate eyewitness on the stand. In this case it is the patient. His statement is not hearsay and would be admissible if it is relevant to the case.

Next, imagine the person who forms the next link in the chain of hearsay on the stand. In this case it is the doctor. His testimony would clearly be hearsay. However, the doctor's imaginary testimony about the patient's statement might well be admissible under the excited utterance exception or, in Federal Court, the exception for statements made in aid of medical treatment or, in state court, the exception for statements about the declarant's prior physical condition. Next, imagine offering the medical record that contains the doctor's statement. It may be subject to the hearsay exception for business records and therefore be admissible to prove that the doctor made the statement if a proper foundation is laid through the custodian of records.

Thus, it looks like the medical record comes in to prove that the patient did start to bleed from the head when he was struck. On the other hand, if any level of the hearsay fails to fall within an exception, the proof will not be received. All multiple hearsay problems, no matter how involved, will ultimately yield to the same type of analysis.

The credibility of a hearsay declarant may be attacked in the same ways as that of any witness. Evid. Code § 1202.

XIII. PRIVILEGES.

Evidentiary privileges are rights held by certain persons that allow them either to refuse to provide evidence or to prevent evidence from being offered against them. Privileges are contrary to the general rules that all relevant and competent evidence is admissible and that every citizen has an obligation to give evidence in a judicial proceeding. Evid. Code § 911. Privileges also hinder the basic function of the judicial system, which is the search for truth. Accordingly, privileges only exist to serve important interests and relationships, they are construed narrowly, and new ones are rarely created, at least by the courts.

Since privileges are meant to vindicate a private or public interest in confidentiality, and since they are disfavored, they can be waived by the persons or entities they are meant to protect. The person or persons who can waive the privilege are called "holders" of the privilege. Where more than one person holds a privilege, sometimes the act of only one is required to waive it and sometimes an act of both is required. Evid. Code § 912. In many cases, the nonholder who is a party to a privileged communication is required to assert the privilege on behalf of the holder.

In California, no adverse inference may be drawn from the exercise of a privilege in any kind of case. Evid. Code § 913. In federal courts, an adverse inference may sometimes be drawn in a civil case or administrative proceeding. Baxter v. Palmigiano (1976) 425 U.S. 308, 317 96 S. Ct. 1551, 1557. Under federal law, the proponent of the privilege always has the burden of showing that a particular communication was confidential. In California, communications between a lawyer and a client, a physician and a patient, a clergyman and a penitent, and a husband and a wife are presumed confidential, and the opponent of the privilege has the burden of showing that a particular communication was not confidential. Evid. Code § 917.

California's Evidence Code deals with the law of privilege at Sections 900 through 1070. You should at least skim these sections. The privileges explicitly created by statute are the only ones recognized in California and the courts are powerless to create new ones. Evid. Code § 911. The privileges included in the Evidence Code are listed below:

1. The privilege against self-incrimination. Evid. Code § 940 et seq.

2. The attorney-client privilege. This one is held by the client. Evid. Code § 950 et seq.

3. The privilege of a married person not to testify against his spouse. Evid. Code § 970. This one belongs to the spouse called to testify.

4. The privilege for confidential marital communications. Evid. Code § 980 et seq. This one belongs to both spouses.

5. The physician-patient privilege. Evid. Code § 990 et seq. This one belongs to the patient. Evid. Code § 993.

6. The psychotherapist-patient privilege. Evid. Code § 1010 et seq. This one belongs to the patient. Evid. Code § 1013.

7. The clergyman-penitent privilege. Evid. Code § 1030 et seq. This one belongs to both parties. Evid. Code §§ 1033, 1034.

8. The privilege for sexual assault counseling. Evid. Code § 1035 et seq. This one belongs to both the victim and the counselee. Evid. Code §§ 1035.6, 1035.8.

9. The privilege for domestic violence counseling. Evid. Code § 1037.1. This one belongs to the counselee.

10. The privilege for official information. Evid. Code § 1040 et seq. This one protects official information the disclosure of which is forbidden by law or the disclosure of which is against the public interest because the need to preserve confidentiality outweighs the necessity for disclosure in the interest of justice. Evid. Code § 1040. It belongs to the public entity.

11. The informer's privilege. Evid. Code § 1041. This one belongs to the government but may not be used to prevent the informer from voluntarily revealing his identity. Id.

12. The privilege to protect the secrecy of a vote. Evid. Code § 1050.

13. The privilege to protect a trade secret. Evid. Code § 1060 et seq.

14. The newsman's privilege. Evid. Code § 1070.

Since congress couldn't agree on a codification of privileges when it approved the federal rules, it left this area completely to the federal courts and the states. Under Federal Rule 510, when evidence is offered on a federal claim, the applicable privileges are determined by the federal common law. When the evidence is offered on a state claim, the state's law of privilege is applied. Since the federal law of privilege is still evolving, and since the federal courts are much more hostile to privileges than California's legislature, I recommend that you study the list of California privileges. If a privilege didn't make it there, it probably won't make it in the federal courts. The reverse is not true.

XIV. PRESUMPTIONS.

There used to be considerable controversy over the effect of presumptions. Some courts held that a presumption went away as soon as evidence on the subject it covered was received. Others treated presumptions like evidence, to be weighed either against the other evidence in the case or against the burden of proof. Luckily, these disagreements have been largely ended by statute in California and by rule in the federal system.

In California, presumptions are either conclusive or rebuttable. Evid. Code § 601. Rebuttable presumptions are of two kinds--those affecting the burden of producing evidence and those affecting the burden of proof. Most presumptions are interpreted to be rebuttable.

A list of the rebuttable presumptions affecting the burden of producing evidence is given starting at Section 631 of the Evidence Code. They include the presumptions that money or property delivered is due to the recipient, that a written obligation that has been surrendered to the debtor has been paid and the reverse, that when a receipt for an installment on a debt is given all previous installments have been paid, that a possessor of a thing is also its owner, that a writing is truly dated, that a letter correctly addressed and properly mailed is received in the ordinary course of mail, that certain ancient documents are authentic, that where the requirements of res ipsa loquitur are met the defendant was negligent, and that the facts stated in the return of a process server are true.

Under California law with respect to rebuttable presumptions affecting the burden of producing evidence, and under the federal rules with respect to all presumptions, unless the statute or rule creating them explicitly says otherwise, a presumption shifts the burden of going forward but not the burden of proof. Fed. Rules Evid. 301. The presumption itself is not considered evidence. Evid. Code § 600(a). However, if no evidence is received to rebut the presumption, the finder of fact must assume the existence of the presumed fact if the existence of the basic fact upon which the presumption depends has been established. Evid. Code § 604.

If evidence is received to rebut the presumption, the presumption has no further effect, but the finder of fact may infer the presumed fact from the basic fact if he believes that the inference is warranted. Evid. Code § 604. Therefore, evidence of the basic fact that is the condition of the presumption may be weighed against any other evidence in the case in determining whether the burden of proof, also called the risk of nonpersuasion, has been met.

In addition, California also has certain rebuttable presumptions that shift the burden of proof. Cal. Evid. § Code 606. All rebuttable presumptions that are established to implement some public policy other than the correct determination of the issues in the case are put in this category. Cal. Evid. § Code 605, 660. A list of some of the rebuttable presumptions affecting the burden of proof begins at Section 662 of the Evidence Code. They include the presumptions that the legal owner of property is the sole beneficial owner, that a ceremonial marriage is valid, that official duties have been regularly performed, that a person intends the ordinary consequences of his voluntary act, that a court of any state or of the United States whose judgment is being collaterally attacked acted within its jurisdiction, that a person not heard from in five years is dead, that a person doing an unlawful act had an unlawful intent, that a person who causes injury by violating a protective provision of law acted negligently, and that there are proper grounds for the enactment of certain kinds of local ordinances restricting the occupancy of buildings.

Conclusive presumptions are just that--conclusive. A presumption will not be interpreted to be conclusive unless the law creating it specifically says that it is. Evid. Code § 620. A list of the most common conclusive presumptions is given in the Evidence Code starting at Section 621. They include presumptions relating to legitimacy, facts recited in a written instrument, and estoppel.

XV. JUDICIAL NOTICE AND OTHER SUBSTITUTES FOR EVIDENCE.

The need for evidence on some issues in a case can sometimes be dispensed with by means of formal admissions, stipulations, and judicial notice.

In California, courts must take judicial notice of facts and propositions of generalized knowledge that are so universally known that they cannot be the subject of reasonable dispute. Cal. Evid. § Code 451. Courts may take judicial notice of facts that are not reasonably subject to dispute and that can be immediately and accurately determined by resort to sources of reasonably indisputable accuracy, Evid. Code § 452, and they must do so where a party requests such notice, supplies the court with the necessary materials, and gives sufficient notice to his opponent. Evid. Code § 453.

Likewise, under the federal rules, judicial notice may be taken of adjudicative facts that are not subject to reasonable dispute because they are either generally known or can be accurately and readily determined. Where a party requests such notice and supplies the court with the necessary information, the court must take notice and instruct the jury accordingly. The court may notice eligible facts on its own motion as well. Fed. Rules Evid. 201(c).

In addition, both state and federal courts can take notice of the laws of the states and of the federal system. However, if you need to rely on a local statute or ordinance, a foreign law, or the like, you will need to refer to the specific rules to determine what you must do to prove or obtain judicial notice of their provisions. Evid. Code § 451, 452; Fed. R. Civ. P. 44, 44.1.

Where a fact has been judicially noticed or is the subject of a binding admission or stipulation, the court may, and upon request must, instruct the jury to accept that fact as conclusively established. Evid. Code § 457.

XVI. MAKING AND OPPOSING OBJECTIONS.

To preserve the right to appeal based on an adverse ruling, when an objection is made the objector must specify the ground of the objection. Evid. Code § 353; Fed. Rules Evid. 103(a)(1). Only the grounds stated will be reviewed upon any appeal, so if you have more than one ground you need to state them all. This is why so many lawyers start out all their objections with "Objection. Irrelevant, incompetent, immaterial . . . " and so on. In stating the grounds for your objection, it is best to be as specific and concise as possible, citing the number of the applicable statute or rule if you know it, although that is not necessary.

Specifying the ground for your objection is different from arguing your objection. You have no right to argue your objections and should not attempt to do so unless the court permits or invites it. "Objection. Hearsay," is sufficient to preserve your right to appeal based upon the erroneous reception of the hearsay. You also have no right to argue your opposition to objections, though a judge may permit you to do so.

Because of the lack of a right to argue objections, it is important for you to attempt to anticipate significant evidentiary issues and to brief them in a motion in limine, which is submitted to the court at the beginning of the trial. If you raise an evidentiary issue in a motion in limine, you should refer to the motion when the evidence in question comes up, but doing so does not relieve you of the obligation of specifying the grounds of your objection at that time and making an offer of proof if necessary.

If you are offering evidence and an objection is sustained, in order to preserve the exclusion as a possible ground for appeal you must make an offer of proof. Evid. Code § 354; Fed. Rules Evid. 103(a)(2). When the ruling is made, ask the court for an opportunity to make such an offer. Usually this is done outside the presence of the jury, often at the next break in the testimony. Evid. Code § 402; Fed. Rules Evid. 103(c). Thus, it is important to keep a running list of any such offers you need to make since, if you forget, you will not be able to complain of the ruling on appeal. A proper offer must include a description of the substance, purpose, and relevance of the evidence that you would present if permitted. Evid. Code § 354; Fed. Rules Evid. 103(a)(2).

An offer of proof, can also provide you with a means of mitigate the effect of the rule that you have no right to argue evidentiary rulings. A well formulated offer of proof can sometimes persuade the court that its initial decision to exclude your evidence was incorrect.

XVII. MISCELLANEOUS OTHER RULES.

A list of other commonly encountered rules follows:

1. Evidence of subsequent remedial measures is not admissible to show previous negligence or culpable conduct. Evid. Code § 1151; Fed. Rules Evid. 407.

2. Evidence of mediation or settlement discussions is not admissible to prove liability for the claims that were being discussed. Evid. Code § 1152, 1152.5; Fed. Rules Evid. 408. Nor is evidence of the payment of medical expenses to show liability. Fed. Rules Evid. 409. Nor, in California, is evidence of partial satisfaction of any asserted claim to prove the validity of the claim. Evid. Code § 1152. Nor is evidence of a guilty plea that is later withdrawn, nor any statements made in connection with it. Evid. Code § 1153; Fed. Rules Evid. 410.

3. The court may call its own witnesses and may question any witness. Evid. Code § 775; Fed. Rules Evid. 614.

4. When part of an act, declaration, conversation, or writing is given in evidence by one party, such other parts of the act, declaration, conversation, or writing, as are necessary in fairness to a complete understanding of the parts admitted will also be admitted. Evid. Code § 356; Fed. Rules Evid. 106.

XVIII. CONCLUSION.

While this whirlwind summary of the law of evidence is by no means complete, if you have mastered the concepts it contains and read the materials suggested, you will be able to deal with the vast majority of evidentiary problems that you will encounter and will usually have a good idea when you need to look up a rule or statute or to research the cases. Knowledge of the rules of evidence will enable you to put your proof before the finder of fact and maybe to keep some of your opponent's proof from being received. Confidence in your knowledge of the rules will free you to concentrate on the kind of effective presentation and argument that will help you to win your case.
 

SELECT REFERENCES
 

1. Federal Rules of Evidence. The federal rules are short, and you should read them through, including the notes of the advisory committee and congressional committees.

2. B. Jefferson, California Evidence Bench Book. Many judges consider this treatise to be holy writ. You will see it on many of their benches.

3. B. Witkin, California Evidence. The other leading treatise on California's law of evidence.

NOTES

1 I think I got this concept from a training video by a federal judge for other federal judges that I saw many years ago. If you know the author, please send me an email with the information so I can credit it properly.