• Because audio recordings are representations of sounds, voices, or conversations, facts indicating that the recording is an incomplete, inaccurate, or misleading representation may be grounds to exclude.
• Analytically, this is a 403 undue prejudice issue, but often gets addressed as a foundational issue.
• Prosecution introduces a five minute audio segment recording the defendant's confession to the crime.
• Prosecution fails to introduce the first two hours of the tape, wherein the police can be heard beating, torturing, and screaming at the defendant.
In this article:
(a) A "writing" consists of letters, words, numbers, or their equivalent set down in any form.
(b) A "recording" consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A "photograph" means a photographic image or its equivalent stored in any form.
(d) An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout--or other output readable by sight--if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.
(e) A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
The Best Evidence Rule says that to prove the contents of a writing, etc., you have to offer the original.
However, the Rule immediately goes on to say that a duplicate is just as good as an original, unless:
(1) There is a question as to the original's authenticity, or
(2) It would be unfair to admit a duplicate.
Thus, the effect of the BER is to say: if you're trying to prove write a writing, etc., says, show us the writing; don't tell us what you think it said, or offer a written recap of what it said.
Any writing, recording or photograph offered into evidence —just like any other real or demonstrative evidence—must be authenticated to be admissible.
• Thus, an authentication objection makes sense when a party offers an item of evidence into evidence, but not beforehand.
Conversely, if you are trying to prove the contents of a writing, recording or photograph and do not offer it in evidence, you are violating the BER (unless an exception applies).
• Thus, a BER objection makes sense when a party fails to offer an item into evidence, but not when they do.
Whether you are either offering testimony about the contents of a writing, or offering the writing itself in evidence, the hearsay rule is implicated.
Not all "writings" are "statements" for purposes of the hearsay rule.
• A photograph must be offered to prove the contents of the photograph (unless an exception applies).
• There is no "hearsay" objection to a photograph (unless it is a photo of a statement).
(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
(2) The evidence is offered to prove or explain acts or conduct of the declarant.
(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.
CEC 1252. Restriction on admissibility of statement of mental or physical state
Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.
Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:
(a) The declarant is unavailable as a witness; and
(b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.
FRE 404(b): Crimes, Wrongs, or Other Acts.
(2) Permitted Uses... This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Sometimes, a party will try to introduce evidence not of the past acts of a person, but of a prior event
• This evidence is not technically "character" evidence, and so is not governed by FRE 404 and 405
• Technically, it is a 402/403 relevance/prejudice issue
• However, if this type of evidence is used to suggest that someone acted in conformity with a trait on a particular occasion, i.e., for the propensity inference, it raises the same concerns
• As with character evidence, if the proponent can identify a non-character purpose for which the evidence is relevant (like "MIMIC"), it should be allowed
• Frequently, it is said that similar occurrences will be allowed if there is "substantial similarity" between those occurrences and the event in question
• However, the circumstances need not be identical (no two occurrences ever are); the similarity only needs to be enough to make the other occurrence relevant for a non-propensity purpose
• It may be that in certain cases, like products liability cases, the difference in circumstances under which accidents occurred helps with admissibility
Plea Offers and Negotiations
• Unlike the Federal rule, the California rule does not protect nolo contendre pleas for felonies
• Since the only difference between a guilty and nolo contendre plea is the subsequent use in civil cases, for practical purposes, there is no nolo for felonies.
• Nolo contendre only works for misdemeanors in California
• It works for both misdemeanors and felonies in federal court
• Unlike the FRE, the California rule could exclude statements made to police officers, as long as they are made in the course of "bona fide plea negotiations"
• The test is whether the defendant reasonably believed that the police officer was in a position to negotiate
• Not protected: A defendant who, while getting put into the patrol car, makes the unsolicited statement, "Okay, I did it, but I was high at the time."
• Protected: A defendant who, after the police in the interrogation room tell him he has to cooperate if they're going to be able to help him, admits he was high at the time he committed the crime
.• Like the Federal rule, the California rule itself says nothing about whether statement made during plea negotiations can be used to impeach.
• Unlike the FRE, the California courts have not interpreted the rule to preclude statements for impeachment purposes.
• In any event, under Prop 8, such statements could be used to impeach because they are relevant
"Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given. • 1st and 2nd privileges do not apply in same proceeding --If other spouse is party, W can refuse to testify at all --If other spouse not a party, can only refuse certain Qs
• 1st privilege gives W right not to testify if called by adverse party, but not if called by spouse
--If spouse calls W, privilege not to testify is waived; W is subject to cross examination and must give adverse testimony
--If spouse calls W, privilege not to testify subsequently in same action is also waived• Under 2nd privilege (where spouse is not a party), if W is called and testifies favorably re spouse, she has not waived right not to testify adversely to spouse
--If W does testify adversely to spouse, she has waived right not to testify subsequently in same action
• Since privileges are distinct, waiving one does not waive the other:
--If W testifies adversely when spouse is not a party, and spouse later becomes party, W can refuse to testify at all
--Distinguish grand jury (separate proceeding) v. preliminary hearing (same proceeding as trial)