Question 3: Can I get a witness? (California Evidence) California Bar Exam

This is the first of three criminal questions on this test, the most in recent memory since criminal subjects are rarely tested compared to torts and constitutional law.  This question is probably to calibrate the testing group since virtually the same issues were asked in July 2010 question 3.

Vicky was killed on a rainy night.  The prosecution charged Dean, a business rival, with her murder.  It alleged that, on the night in question, he hid in the bushes outside her home and shot her when she returned from work.

At Dean’s trial in a California court, the prosecution called Whitney, Dean’s wife, to testify.  One week after the murder, Whitney had found out that Dean had been dating another woman and had moved out, stating the marriage was over.  Still angry, Whitney was willing to testify against Dean.   After Whitney was called to the stand, the court took a recess.  During the recess, Dean and Whitney reconciled.  Whitney decided not to testify against Dean.  The trial recommenced and the prosecutor asked Whitney if she saw anything on Dean’s shoes the night of the murder.  When Whitney refused to answer, the court threatened to hold her in contempt.  Reluctantly, Whitney testified that she saw mud on Dean’s shoes.

The prosecution then called Ella, Dean’s next-door neighbor.  Ella testified that, on the night Vicky was killed, she was standing by an open window in her kitchen, which was about 20 feet from an open window in Dean’s kitchen.  She also testified that she saw Dean and Whitney and she heard Dean tell Whitney, “I just killed the gal who stole my biggest account.”  Dean and Whitney did not know that Ella overheard their conversation.

Dean called Fred, a friend, to testify.  Fred testified that, on the day after Vicky was killed, he was having lunch in a coffee shop when he saw Hit, a well-known gangster, conversing at the next table with another gangster, Gus.  Fred testified that he heard Gus ask Hit if he had “taken care of the assignment concerning Vicky,” and that Hit then drew his index finger across his own throat.

Assuming all appropriate objections and motions were timely  made, did the court properly:

1.  Allow the prosecution to call Whitney?  Discuss.

2.  Admit the testimony of:
(a)  Whitney?  Discuss.
(b)  Ella?  Discuss.
(c)  Fred?  Discuss.

Answer according to California law.

I.  Whitney should not have to testify because she has spousal privilege.

The issue is whether Whitney has a privilege not to testify against Dean.  In California, a married person has a privilege not to testify against his spouse in any proceeding unless an exception applies.  Here, Whitney and Dean are married and Whitney invoked her spousal privilege because she "decided not to testify against Dean" and "refused to answer" questions. The prosecution can argue that this silence is not adequate to invoke a privilege which must be asserted affirmatively.

Assuming that argument prevailed the prosecution has a further hurdle to cross since 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.  Here, the prosecution knows that Whitney and Dean are married and must affirmatively seek Dean's consent to call Whitney.  This failure to do so should result in Whitney being unable to testify.

IIA.  If Whitney does testify her testimony is admissible because it is relevant and is based on personal observation.

Whitney's statement has logical and legal relevance because it tends to shoe that Dean was outside at the time of the murder.

For evidence to be admissible it must be relevant which, under California law, is any evidence that has any tendency to make any fact of consequence, that is at issue, more or less probable than it would be without such evidence. Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

Whitney's statement has logical and legal relavance because the mud on Dean's shoes tends to prove that he was outside on "a rainy night" which would have been necessary to place him at the scene of the crime.


Whitney has personal knowledge because she saw Dean's shoes.

A witness may only testify as to those matters to which one has personal knowledge, in that one  must have perceived the matter in some manner, such as by hearing or observing it.  Here, Whitney saw Dean's shoes and has personal knowledge of their state satisfying this requirement.

Since Whitney has personal knowledge of a relevant observation she may testify as to that observation.

IIB. Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

Ella's statement possesses Logical/Legal Relevance and personal knowledge because she observed Dean admitting to kill Vicky.

The statement is relevant because it tends to show that Dean admitted to killing Vicky to his wife.  Since Ella observed the statement she is certain of its source giving her personal knowledge of a logially and legally relevant statement.

Ella's statement does not violate the rule against hearsay because Dean's statement is an admission by an opponent of the prosecution.

Hearsay is an out of court statement offered for the truth of the matter asserted.  However, in California admissions by one party may be offered by the other party as an exception to this rule.  While Ella is reporting an out of court statement offered for its truth, since Dean is apparently admitting that he killed someone it is an exception to the rule against hearsay.

Ella's statement does not violate the martial communication exception because Dean's statement was made in furtherance of a crime.

Communications intended to be confidential made between spouses during marriage are not admissible unless an exception applies.  An exception applies to spouses when the communication relates to a crime or fraud.  Here, Dean may claim that he and Whitney intended their solitary late night discussion to be private.  Even if that were true, the communication about how he "just killed the gal" relates to the crime of murder.  Therefore the marital communication exception does not apply.

Therefore, Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

IIC.  Fred's statement violates the rule against hearsay and is inadmissible.

Fred's statement has Logical and Legal Relevance because it tends to show that Hit killed Vivky and not Dean.

As a preliminary manner, the issue is whether the hand motion is an action and a statement or a complete statement.  A statement is present when conduct tends to create a message.  Here the finger movement, is meant to convey a message and the entire action is a statement.  The statement, if true can tend to show that someone other than Dean killed Vicky, which exonerates Dean and meets the requirements of logical and legal relevance.

Fred's statement violates the rule against hearsay because the meaning of Hit's statement cannot be discerned without Hit's testimony.

Hearsay is defined above.  An exception to the rule against hearsay applies to unavailable declarants who make statements against penal interest.  Here, admitting to killing Vicky is against Hit's penal interest.  However, it is not immediately clear whether Hit is unavailable.  Even if he cannot be located the statement still fails as to the rule against hearsay because only the declarant can explain what he meant.  Any other interpretation of the situation is too speculative.

Therefore, since Fred's statement violates the rule against hearsay it is inadmissible.