FRE 102

(Purpose and Construction)

FRE 103(a)

(Rulings on Evidence)

Effect of Erroneous Ruling

(a) Effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

FRE 103(b)

(Effect on Erroneous Ruling)

Record of Offer and Ruling

(b) Record of offer and ruling

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

FRE 103(c)

(Effect on Erroneous Ruling)

Hearing of Jury

(c) Hearing of jury

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

FRE 103(d)

(Effect on Erroneous Ruling)

Plain Error

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

FRE 611

(Mode and Order of Interrogation and Presentation)

a. control by court

b. scope of cross

c. leading questions

(a) Control by court.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination.

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions.

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

FRE 606(b)

(Competency of Juror as Witness)

Inquiry into validity of Verdict or Indictment

(b) Inquiry into validity of verdict or indictment.

Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

FRE 401

(Relevant Evidence)

FRE 402

(Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

FRE 403

(Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time)

CEC 210

(Relevance)

210.  "Relevant evidence" means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant, having
any tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.

CEC 352

Exclusion of Relevant Evidence

352.  The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.

FRE 104(a)

(Preliminary Questions)

Questions of Admissibility Generally

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

FRE 104(b)

(Preliminary Questions)

Relevancy Conditioned on Fact

(b) Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

FRE 901

(Requirement of Authentication or Identification)

a. general

b (1-10). illustrations

(a) General provision.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations.

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

FRE 902

(Self-Authentication)

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted activity.  The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian  or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12) Certified foreign records of regularly conducted activity.  In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian  or other qualified person certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a  manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

400.  As used in this article, "preliminary fact" means a fact upon
the existence or nonexistence of which depends the admissibility or
inadmissibility of evidence. The phrase "the admissibility or
inadmissibility of evidence" includes the qualification or
disqualification of a person to be a witness and the existence or
nonexistence of a privilege.



401.  As used in this article, "proffered evidence" means evidence,
the admissibility or inadmissibility of which is dependent upon the
existence or nonexistence of a preliminary fact.



402.  (a) When the existence of a preliminary fact is disputed, its
existence or nonexistence shall be determined as provided in this
article.
   (b) The court may hear and determine the question of the
admissibility of evidence out of the presence or hearing of the jury;
but in a criminal action, the court shall hear and determine the
question of the admissibility of a confession or admission of the
defendant out of the presence and hearing of the jury if any party so
requests.
   (c) A ruling on the admissibility of evidence implies whatever
finding of fact is prerequisite thereto; a separate or formal finding
is unnecessary unless required by statute.



403.  (a) The proponent of the proffered evidence has the burden of
producing evidence as to the existence of the preliminary fact, and
the proffered evidence is inadmissible unless the court finds that
there is evidence sufficient to sustain a finding of the existence of
the preliminary fact, when:
   (1) The relevance of the proffered evidence depends on the
existence of the preliminary fact;
   (2) The preliminary fact is the personal knowledge of a witness
concerning the subject matter of his testimony;
   (3) The preliminary fact is the authenticity of a writing; or
   (4) The proffered evidence is of a statement or other conduct of a
particular person and the preliminary fact is whether that person
made the statement or so conducted himself.
   (b) Subject to Section 702, the court may admit conditionally the
proffered evidence under this section, subject to evidence of the
preliminary fact being supplied later in the course of the trial.
   (c) If the court admits the proffered evidence under this section,
the court:
   (1) May, and on request shall, instruct the jury to determine
whether the preliminary fact exists and to disregard the proffered
evidence unless the jury finds that the preliminary fact does exist.
   (2) Shall instruct the jury to disregard the proffered evidence if
the court subsequently determines that a jury could not reasonably
find that the preliminary fact exists.



404.  Whenever the proffered evidence is claimed to be privileged
under Section 940, the person claiming the privilege has the burden
of showing that the proffered evidence might tend to incriminate him;
and the proffered evidence is inadmissible unless it clearly appears
to the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.



405.  With respect to preliminary fact determinations not governed
by Section 403 or 404:
   (a) When the existence of a preliminary fact is disputed, the
court shall indicate which party has the burden of producing evidence
and the burden of proof on the issue as implied by the rule of law
under which the question arises. The court shall determine the
existence or nonexistence of the preliminary fact and shall admit or
exclude the proffered evidence as required by the rule of law under
which the question arises.
   (b) If a preliminary fact is also a fact in issue in the action:
   (1) The jury shall not be informed of the court's determination as
to the existence or nonexistence of the preliminary fact.
   (2) If the proffered evidence is admitted, the jury shall not be
instructed to disregard the evidence if its determination of the fact
differs from the court's determination of the preliminary fact.

FRE 1001

(Definitions - Writings, Recordings, Photographs)

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

FRE 1002

(Requirement of Original)

FRE 1003

(Admissibility of Duplicates)

FRE 1004

(Admissibility of other evidence of contents)

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

FRE 1005

(Public Records)

FRE 1006

(Summaries)

FRE 1007

(Testimony or Written Admission of Party)

FRE 1008

(Functions of Court and Jury)

FRE 801 (a-c)

(Hearsay)

Definitions

The following definitions apply under this article:

(a) Statement.

A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.

A "declarant" is a person who makes a statement.

(c) Hearsay.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

FRE 801(d)

(Hearsay)

Statements which are not hearsay

(d) Statements which are not hearsay.

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

CEC 1235, 1236, 1238

(Hearsay)

1235.  Evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent
with his testimony at the hearing and is offered in compliance with
Section 770.


1236.  Evidence of a statement previously made by a witness is not
made inadmissible by the hearsay rule if the statement is consistent
with his testimony at the hearing and is offered in compliance with
Section 791.

1238.  Evidence of a statement previously made by a witness is not
made inadmissible by the hearsay rule if the statement would have
been admissible if made by him while testifying and:
   (a) The statement is an identification of a party or another as a
person who participated in a crime or other occurrence;
   (b) The statement was made at a time when the crime or other
occurrence was fresh in the witness' memory; and
   (c) The evidence of the statement is offered after the witness
testifies that he made the identification and that it was a true
reflection of his opinion at that time.

FRE 803

(Hearsay Exceptions)

(syllabus - 1-8, 18)

(24) [Other exceptions.][Transferred to Rule 807]

CEC 1222

(Exceptions to hearsay)

1222.  Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if:
   (a) The statement was made by a person authorized by the party to
make a statement or statements for him concerning the subject matter
of the statement; and
   (b) The evidence is offered either after admission of evidence
sufficient to sustain a finding of such authority or, in the court's
discretion as to the order of proof, subject to the admission of such
evidence.

CEC 1240-1

(Exceptions to Hearsay)

Dying Declarations

1240.  Evidence of a statement is not made inadmissible by the
hearsay rule if the statement:
   (a) Purports to narrate, describe, or explain an act, condition,
or event perceived by the declarant; and
   (b) Was made spontaneously while the declarant was under the
stress of excitement caused by such perception.



1241.  Evidence of a statement is not made inadmissible by the
hearsay rule if the statement:
   (a) Is offered to explain, qualify, or make understandable conduct
of the declarant; and
   (b) Was made while the declarant was engaged in such conduct.

CEC 1250-53

(Hearsay Exceptions)

Statements of Mental or Physical State

1250.  (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.



1251.  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.



1252.  Evidence of a statement is inadmissible under this article if
the statement was made under circumstances such as to indicate its
lack of trustworthiness.

1253.  Subject to Section 1252, evidence of a statement is not made
inadmissible by the hearsay rule if the statement was made for
purposes of medical diagnosis or treatment and describes medical
history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.
This section applies only to a statement made by a victim who is a
minor at the time of the proceedings, provided the statement was made
when the victim was under the age of 12 describing any act, or
attempted act, of child abuse or neglect. "Child abuse" and "child
neglect," for purposes of this section, have the meanings provided in
subdivision (c) of Section 1360. In addition, "child abuse" means
any act proscribed by Chapter 5 (commencing with Section 281) of
Title 9 of Part 1 of the Penal Code committed against a minor.

CEC 1260

(Hearsay Exceptions)

Statements relating to Wills

1260.  (a) Except as provided in subdivision (b), evidence of any of
the following statements made by a declarant who is unavailable as a
witness is not made inadmissible by the hearsay rule:
   (1) That the declarant has or has not made a will or established
or amended a revocable trust.
   (2) That the declarant has or has not revoked his or her will,
revocable trust, or an amendment to a revocable trust.
   (3) That identifies the declarant's will, revocable trust, or an
amendment to a revocable trust.
   (b) Evidence of a statement is inadmissible under this section if
the statement was made under circumstances that indicate its lack of
trustworthiness.

FRE 804(a)

(Hearsay Exceptions; DL unavailable)

Definition of Unavailable

(a) Definition of unavailability.

"Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

FRE 804(b)

(Hearsay Exceptions; DL unavailable)

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Other exceptions.][Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

CEC 240

Exceptions to Hearsay

DL unavailable

240.  (a) Except as otherwise provided in subdivision (b),
"unavailable as a witness" means that the declarant is any of the
following:
   (1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
relevant.
   (2) Disqualified from testifying to the matter.
   (3) Dead or unable to attend or to testify at the hearing because
of then-existing physical or mental illness or infirmity.
   (4) Absent from the hearing and the court is unable to compel his
or her attendance by its process.
   (5) Absent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to
procure his or her attendance by the court's process.
   (6) Persistent in refusing to testify concerning the subject
matter of the declarant's statement despite having been found in
contempt for refusal to testify.
   (b) A declarant is not unavailable as a witness if the exemption,
preclusion, disqualification, death, inability, or absence of the
declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the
declarant from attending or testifying.
   (c) Expert testimony that establishes that physical or mental
trauma resulting from an alleged crime has caused harm to a witness
of sufficient severity that the witness is physically unable to
testify or is unable to testify without suffering substantial trauma
may constitute a sufficient showing of unavailability pursuant to
paragraph (3) of subdivision (a). As used in this section, the term
"expert" means a physician and surgeon, including a psychiatrist, or
any person described by subdivision (b), (c), or (e) of Section 1010.
   The introduction of evidence to establish the unavailability of a
witness under this subdivision shall not be deemed procurement of
unavailability, in absence of proof to the contrary.

CEC 1290-94

Hearsay Exceptions

Former Testimony

1290.  As used in this article, "former testimony" means testimony
given under oath in:
   (a) Another action or in a former hearing or trial of the same
action;
   (b) A proceeding to determine a controversy conducted by or under
the supervision of an agency that has the power to determine such a
controversy and is an agency of the United States or a public entity
in the United States;
   (c) A deposition taken in compliance with law in another action;
or
   (d) An arbitration proceeding if the evidence of such former
testimony is a verbatim transcript thereof.



1291.  (a) Evidence of former testimony is not made inadmissible by
the hearsay rule if the declarant is unavailable as a witness and:
   (1) The former testimony is offered against a person who offered
it in evidence in his own behalf on the former occasion or against
the successor in interest of such person; or
   (2) The party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given
and had the right and opportunity to cross-examine the declarant with
an interest and motive similar to that which he has at the hearing.
   (b) The admissibility of former testimony under this section is
subject to the same limitations and objections as though the
declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to:
   (1) Objections to the form of the question which were not made at
the time the former testimony was given.
   (2) Objections based on competency or privilege which did not
exist at the time the former testimony was given.



1292.  (a) Evidence of former testimony is not made inadmissible by
the hearsay rule if:
   (1) The declarant is unavailable as a witness;
   (2) The former testimony is offered in a civil action; and
   (3) The issue is such that the party to the action or proceeding
in which the former testimony was given had the right and opportunity
to cross-examine the declarant with an interest and motive similar
to that which the party against whom the testimony is offered has at
the hearing.
   (b) The admissibility of former testimony under this section is
subject to the same limitations and objections as though the
declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to objections
based on competency or privilege which did not exist at the time the
former testimony was given.



1293.  (a) Evidence of former testimony made at a preliminary
examination by a minor child who was the complaining witness is not
made inadmissible by the hearsay rule if:
   (1) The former testimony is offered in a proceeding to declare the
minor a dependent child of the court pursuant to Section 300 of the
Welfare and Institutions Code.
   (2) The issues are such that a defendant in the preliminary
examination in which the former testimony was given had the right and
opportunity to cross-examine the minor child with an interest and
motive similar to that which the parent or guardian against whom the
testimony is offered has at the proceeding to declare the minor a
dependent child of the court.
   (b) The admissibility of former testimony under this section is
subject to the same limitations and objections as though the minor
child were testifying at the proceeding to declare him or her a
dependent child of the court.
   (c) The attorney for the parent or guardian against whom the
former testimony is offered or, if none, the parent or guardian may
make a motion to challenge the admissibility of the former testimony
upon a showing that new substantially different issues are present in
the proceeding to declare the minor a dependent child than were
present in the preliminary examination.
   (d) As used in this section, "complaining witness" means the
alleged victim of the crime for which a preliminary examination was
held.
   (e) This section shall apply only to testimony made at a
preliminary examination on and after January 1, 1990.



1294.  (a) The following evidence of prior inconsistent statements
of a witness properly admitted in a preliminary hearing or trial of
the same criminal matter pursuant to Section 1235 is not made
inadmissible by the hearsay rule if the witness is unavailable and
former testimony of the witness is admitted pursuant to Section 1291:
   (1) A video recorded statement introduced at a preliminary hearing
or prior proceeding concerning the same criminal matter.
   (2) A transcript, containing the statements, of the preliminary
hearing or prior proceeding concerning the same criminal matter.
   (b) The party against whom the prior inconsistent statements are
offered, at his or her option, may examine or cross-examine any
person who testified at the preliminary hearing or prior proceeding
as to the prior inconsistent statements of the witness.

CEC 1230

Hearsay Exceptions

Statements against interest

1230.  Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule
if the declarant is unavailable as a witness and the statement, when
made, was so far contrary to the declarant's pecuniary or
proprietary interest, or so far subjected him to the risk of civil or
criminal liability, or so far tended to render invalid a claim by
him against another, or created such a risk of making him an object
of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement
unless he believed it to be true.

FRE 807

(Hearsay Exceptions)

Catchall

Rule 807. Residual Exception

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

6th Amendment

Confrontation Clause

FRE 407

(Subsequent Remedial Measures)

FRE 408

(Compromise and offers to compromise)

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

FRE 409

(Payment for Medical Expenses)

FRE 410

(Inadmissibility of Pleas, Plea Discussion, related statements)

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

FRE 411

(Liability Insurance)

CEC 1160

(Benevolent Gestures)

1160.  (a) The portion of statements, writings, or benevolent
gestures expressing sympathy or a general sense of benevolence
relating to the pain, suffering, or death of a person involved in an
accident and made to that person or to the family of that person
shall be inadmissible as evidence of an admission of liability in a
civil action. A statement of fault, however, which is part of, or in
addition to, any of the above shall not be inadmissible pursuant to
this section.
   (b) For purposes of this section:
   (1) "Accident" means an occurrence resulting in injury or death to
one or more persons which is not the result of willful action by a
party.
   (2) "Benevolent gestures" means actions which convey a sense of
compassion or commiseration emanating from humane impulses.
   (3) "Family" means the spouse, parent, grandparent, stepmother,
stepfather, child, grandchild, brother, sister, half brother, half
sister, adopted children of parent, or spouse's parents of an injured
party.

FRE 404(a)

(Character Evidence not admissible to prove conduct; exceptions; other crimes)

(a) Character evidence generally

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution;

(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness - Evidence of the character of a witness, as provided inrules 607, 608, and 609.

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

FRE 405

(Methods of Proving Character)

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

FRE 412

(Sex offense cases; relevance of victim's past sexual behavior and alleged disposition)

(a) Evidence generally inadmissible.

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must --

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard.  The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

FRE 413

(Evidence of Similar Crimes in Sexual Assault Cases)

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

FRE 414

(Evidence of Similar Crimes in Child Molestation Cases)

(a)  In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United States Code;

(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and any part of the body of a child;

(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

FRE 415

(Evidence of similar Acts in Civil Cases involving Sexual Assault or Child Molestation)

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

CEC 1101(a)

Character Evidence

1101.  (a) Except as provided in this section and in Sections 1102,
1103, 1108, and 1109, evidence of a person's character or a trait of
his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.

CEC 1108-09

(character evidence)

sexual assault and domestic violence

1108.  (a) In a criminal action in which the defendant is accused of
a sexual offense, evidence of the defendant's commission of another
sexual offense or offenses is not made inadmissible by Section 1101,
if the evidence is not inadmissible pursuant to Section 352.
   (b) In an action in which evidence is to be offered under this
section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered in compliance with the
provisions of Section 1054.7 of the Penal Code.
   (c) This section shall not be construed to limit the admission or
consideration of evidence under any other section of this code.
   (d) As used in this section, the following definitions shall
apply:
   (1) "Sexual offense" means a crime under the law of a state or of
the United States that involved any of the following:
   (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262,
264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or
subdivision (b), (c), or (d) of Section 311.2 or Section 311.3,
311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.
   (B) Any conduct proscribed by Section 220 of the Penal Code,
except assault with intent to commit mayhem.
   (C) Contact, without consent, between any part of the defendant's
body or an object and the genitals or anus of another person.
   (D) Contact, without consent, between the genitals or anus of the
defendant and any part of another person's body.
   (E) Deriving sexual pleasure or gratification from the infliction
of death, bodily injury, or physical pain on another person.
   (F) An attempt or conspiracy to engage in conduct described in
this paragraph.
   (2) "Consent" shall have the same meaning as provided in Section
261.6 of the Penal Code, except that it does not include consent
which is legally ineffective because of the age, mental disorder, or
developmental or physical disability of the victim.



1109.  (a) (1) Except as provided in subdivision (e) or (f), in a
criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant's commission
of other domestic violence is not made inadmissible by Section 1101
if the evidence is not inadmissible pursuant to Section 352.
   (2) Except as provided in subdivision (e) or (f), in a criminal
action in which the defendant is accused of an offense involving
abuse of an elder or dependent person, evidence of the defendant's
commission of other abuse of an elder or dependent person is not made
inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.
   (3) Except as provided in subdivision (e) or (f) and subject to a
hearing conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time, in a
criminal action in which the defendant is accused of an offense
involving child abuse, evidence of the defendant's commission of
child abuse is not made inadmissible by Section 1101 if the evidence
is not inadmissible pursuant to Section 352. Nothing in this
paragraph prohibits or limits the admission of evidence pursuant to
subdivision (b) of Section 1101.
   (b) In an action in which evidence is to be offered under this
section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, in compliance with the
provisions of Section 1054.7 of the Penal Code.
   (c) This section shall not be construed to limit or preclude the
admission or consideration of evidence under any other statute or
case law.
   (d) As used in this section:
   (1) "Abuse of an elder or dependent person" means physical or
sexual abuse, neglect, financial abuse, abandonment, isolation,
abduction, or other treatment that results in physical harm, pain, or
mental suffering, the deprivation of care by a caregiver, or other
deprivation by a custodian or provider of goods or services that are
necessary to avoid physical harm or mental suffering.
   (2) "Child abuse" means an act proscribed by Section 273d of the
Penal Code.
   (3) "Domestic violence" has the meaning set forth in Section 13700
of the Penal Code. Subject to a hearing conducted pursuant to
Section 352, which shall include consideration of any corroboration
and remoteness in time, "domestic violence" has the further meaning
as set forth in Section 6211 of the Family Code, if the act occurred
no more than five years before the charged offense.
   (e) Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the court
determines that the admission of this evidence is in the interest of
justice.
   (f) Evidence of the findings and determinations of administrative
agencies regulating the conduct of health facilities licensed under
Section 1250 of the Health and Safety Code is inadmissible under this
section.

FRE 406

(Habit, Routine, Practice)

FRE 601

(Witnesses)

General Rule of Competency

FRE 602

Witnesses

(Lack of Personal KNowledge)

FRE 603

(Witnesses)

Oath or Affirmation

FRE 604

Witnesses

(Interpreters)

FRE 605

Witness

Competency of Judge as Witness

FRE 606

Witness

Competency of Juror as Witness

(a) At the trial.

A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment.

Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

CEC 795

Witness - Hypnosis

795.  (a) The testimony of a witness is not inadmissible in a
criminal proceeding by reason of the fact that the witness has
previously undergone hypnosis for the purpose of recalling events
that are the subject of the witness's testimony, if all of the
following conditions are met:
   (1) The testimony is limited to those matters that the witness
recalled and related prior to the hypnosis.
   (2) The substance of the prehypnotic memory was preserved in a
writing, audio recording, or video recording prior to the hypnosis.
   (3) The hypnosis was conducted in accordance with all of the
following procedures:
   (A) A written record was made prior to hypnosis documenting the
subject's description of the event, and information that was provided
to the hypnotist concerning the subject matter of the hypnosis.
   (B) The subject gave informed consent to the hypnosis.
   (C) The hypnosis session, including the pre- and post-hypnosis
interviews, was video recorded for subsequent review.
   (D) The hypnosis was performed by a licensed medical doctor,
psychologist, licensed clinical social worker, or a licensed marriage
and family therapist experienced in the use of hypnosis and
independent of and not in the presence of law enforcement, the
prosecution, or the defense.
   (4) Prior to admission of the testimony, the court holds a hearing
pursuant to Section 402 at which the proponent of the evidence
proves by clear and convincing evidence that the hypnosis did not so
affect the witness as to render the witness's prehypnosis
recollection unreliable or to substantially impair the ability to
cross-examine the witness concerning the witness's prehypnosis
recollection. At the hearing, each side shall have the right to
present expert testimony and to cross-examine witnesses.
   (b) Nothing in this section shall be construed to limit the
ability of a party to attack the credibility of a witness who has
undergone hypnosis, or to limit other legal grounds to admit or
exclude the testimony of that witness.

FRE 611

Witness

Mode and Order of interrogation and presentation

(a) Control by court.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination.

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions.

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

FRE 611

Witness

Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

FRE 615

Witness

Exclusion of Witnesses

CEC 767

Leading Questions

767.  (a) Except under special circumstances where the interests of
justice otherwise require:
   (1) A leading question may not be asked of a witness on direct or
redirect examination.
   (2) A leading question may be asked of a witness on
cross-examination or recross-examination.
   (b) The court may, in the interests of justice permit a leading
question to be asked of a child under 10 years of age or a dependent
person with a substantial cognitive impairment in a case involving a
prosecution under Section 273a, 273d, 288.5, 368, or any of the acts
described in Section 11165.1 or 11165.2 of the Penal Code.

CEC 780

Credibility of Witness

780.  Except as otherwise provided by statute, the court or jury may
consider in determining the credibility of a witness any matter that
has any tendency in reason to prove or disprove the truthfulness of
his testimony at the hearing, including but not limited to any of the
following:
   (a) His demeanor while testifying and the manner in which he
testifies.
   (b) The character of his testimony.
   (c) The extent of his capacity to perceive, to recollect, or to
communicate any matter about which he testifies.
   (d) The extent of his opportunity to perceive any matter about
which he testifies.
   (e) His character for honesty or veracity or their opposites.
   (f) The existence or nonexistence of a bias, interest, or other
motive.
   (g) A statement previously made by him that is consistent with his
testimony at the hearing.
   (h) A statement made by him that is inconsistent with any part of
his testimony at the hearing.
   (i) The existence or nonexistence of any fact testified to by him.
   (j) His attitude toward the action in which he testifies or toward
the giving of testimony.
   (k) His admission of untruthfulness.

FRE 607

Witness

Who May Impeach

FRE 608

Witness

Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

FRE 609

Witness

Impeachment by Evidence of Conviction of Crime

(a) General rule.

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation.

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications.

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal.

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

CEC 785-788

Attacking Credibility of Witness

785.  The credibility of a witness may be attacked or supported by
any party, including the party calling him.



786.  Evidence of traits of his character other than honesty or
veracity, or their opposites, is inadmissible to attack or support
the credibility of a witness.



787.  Subject to Section 788, evidence of specific instances of his
conduct relevant only as tending to prove a trait of his character is
inadmissible to attack or support the credibility of a witness.



788.  For the purpose of attacking the credibility of a witness, it
may be shown by the examination of the witness or by the record of
the judgment that he has been convicted of a felony unless:
   (a) A pardon based on his innocence has been granted to the
witness by the jurisdiction in which he was convicted.
   (b) A certificate of rehabilitation and pardon has been granted to
the witness under the provisions of Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code.
   (c) The accusatory pleading against the witness has been dismissed
under the provisions of Penal Code Section 1203.4, but this
exception does not apply to any criminal trial where the witness is
being prosecuted for a subsequent offense.
   (d) The conviction was under the laws of another jurisdiction and
the witness has been relieved of the penalties and disabilities
arising from the conviction pursuant to a procedure substantially
equivalent to that referred to in subdivision (b) or (c).

FRE 613

Witness

Prior Statements of Witness

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

FRE 610

Witness

Religious Beliefs or Opinions

FRE 701

Opinions and Expert Testimony

Opinion Testimony by Lay Witnesses

FRE 702

Testimony by Experts

FRE 703

Bases of Opinion Testimony by Experts

FRE 704

Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

FRE 705

Disclosure of Data or Facts Underlying Expert Opinion

FRE 706

Court Appointed Experts

(a) Appointment.

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

(b) Compensation.

Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.

(c) Disclosure of appointment.

In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d) Parties' experts of own selection.

Nothing in this rule limits the parties in calling expert witnesses of their own selection.

FRE 501

Privileges

General

CEC 954

Lawyer-Client Privilege

954.  Subject to Section 912 and except as otherwise provided in
this article, the client, whether or not a party, has a privilege to
refuse to disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer if the privilege
is claimed by:
   (a) The holder of the privilege;
   (b) A person who is authorized to claim the privilege by the
holder of the privilege; or
   (c) The person who was the lawyer at the time of the confidential
communication, but such person may not claim the privilege if there
is no holder of the privilege in existence or if he is otherwise
instructed by a person authorized to permit disclosure.
   The relationship of attorney and client shall exist between a law
corporation as defined in Article 10 (commencing with Section 6160)
of Chapter 4 of Division 3 of the Business and Professions Code and
the persons to whom it renders professional services, as well as
between such persons and members of the State Bar employed by such
corporation to render services to such persons. The word "persons" as
used in this subdivision includes partnerships, corporations,
limited liability companies, associations and other groups and
entities.

CEC 970-973

Privilege not to testify against spouse

970.  Except as otherwise provided by statute, a married person has
a privilege not to testify against his spouse in any proceeding.



971.  Except as otherwise provided by statute, a married person
whose spouse is a party to a proceeding has a privilege not to be
called as a witness by an adverse party to that proceeding without
the prior express consent of the spouse having the privilege under
this section unless the party calling the spouse does so in good
faith without knowledge of the marital relationship.



972.  A married person does not have a privilege under this article
in:
   (a) A proceeding brought by or on behalf of one spouse against the
other spouse.
   (b) A proceeding to commit or otherwise place his or her spouse or
his or her spouse's property, or both, under the control of another
because of the spouse's alleged mental or physical condition.
   (c) A proceeding brought by or on behalf of a spouse to establish
his or her competence.
   (d) A proceeding under the Juvenile Court Law, Chapter 2
(commencing with Section 200) of Part 1 of Division 2 of the Welfare
and Institutions Code.
   (e) A criminal proceeding in which one spouse is charged with:
   (1) A crime against the person or property of the other spouse or
of a child, parent, relative, or cohabitant of either, whether
committed before or during marriage.
   (2) A crime against the person or property of a third person
committed in the course of committing a crime against the person or
property of the other spouse, whether committed before or during
marriage.
   (3) Bigamy.
   (4) A crime defined by Section 270 or 270a of the Penal Code.
   (f) A proceeding resulting from a criminal act which occurred
prior to legal marriage of the spouses to each other regarding
knowledge acquired prior to that marriage if prior to the legal
marriage the witness spouse was aware that his or her spouse had been
arrested for or had been formally charged with the crime or crimes
about which the spouse is called to testify.
   (g) A proceeding brought against the spouse by a former spouse so
long as the property and debts of the marriage have not been
adjudicated, or in order to establish, modify, or enforce a child,
family or spousal support obligation arising from the marriage to the
former spouse; in a proceeding brought against a spouse by the other
parent in order to establish, modify, or enforce a child support
obligation for a child of a nonmarital relationship of the spouse; or
in a proceeding brought against a spouse by the guardian of a child
of that spouse in order to establish, modify, or enforce a child
support obligation of the spouse. The married person does not have a
privilege under this subdivision to refuse to provide information
relating to the issues of income, expenses, assets, debts, and
employment of either spouse, but may assert the privilege as
otherwise provided in this article if other information is requested
by the former spouse, guardian, or other parent of the child.
   Any person demanding the otherwise privileged information made
available by this subdivision, who also has an obligation to support
the child for whom an order to estabish, modify, or enforce child
support is sought, waives his or her marital privilege to the same
extent as the spouse as provided in this subdivision.




973.  (a) Unless erroneously compelled to do so, a married person
who testifies in a proceeding to which his spouse is a party, or who
testifies against his spouse in any proceeding, does not have a
privilege under this article in the proceeding in which such
testimony is given.
   (b) There is no privilege under this article in a civil proceeding
brought or defended by a married person for the immediate benefit of
his spouse or of himself and his spouse.

CEC 980

Privilege for Confidential Marital Communications

980.  Subject to Section 912 and except as otherwise provided in
this article, a spouse (or his guardian or conservator when he has a
guardian or conservator), whether or not a party, has a privilege
during the marital relationship and afterwards to refuse to disclose,
and to prevent another from disclosing, a communication if he claims
the privilege and the comunication was made in confidence between
him and the other spouse while they were husband and wife.

FRE 201

Judicial Notice of Adjudicative Fees

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary.

A court may take judicial notice, whether requested or not.

(d) When mandatory.

A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard.

A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice.

Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.