CA Evidence Flashcards
Prop 8
in criminal case, all relevant evidence is admissible, even if objectionable under the CEC, with exceptions.
- exclusionary rules under the US constitution (confrontation clause)
- hearsay
- privilege
- limits on character evidence to prove D’s/Victim’s conduct
- best evidence
- CEC 352, unfair prejudice
relevance
same as FRE but the fact in consequence must also be in dispute
subsequent remedial measures
In CA allowed to show defect existed under strict liability suit
mediation discussions
discussions are inadmissible
payment or offers to pay medical expenses
same as FRE but also makes admissions of fact inadmissible
expressions of sympathy
in civil actions expressions of sympathy are inadmissible if related to suffering or death
pleas later withdrawn
raise Prop 8 issue but conclude it is up for debate can be excluded for unfair prejudice
character evidence in civil cases
no CA exception
character evidence exceptions
CA only: in prosecution for crime of domestic violence or elder abuse, prosecution may offer evidence that D committed other acts of domestic violence or elder abuse
CA only: where court has admitted evidence of V’s character for violence offered by accused, prosecution may offer evidence that accused has violent character.
NOT IN CA: Federal only: where court has admitted evidence of victim’s character offered by accused, prosecution may offer evidence that accused has same character trait.
Admissibility of evidence of Victim’s character to prove conduct
Federal only:
In a homicide case the prosecution can be first to offer evidence that victim had peaceful character if defendant offers evidence victim attacked first.
competency
same as FRE but witness must also understand legal duty to tell the truth
disqualifying witnesses
same as FRE but CA disqualifies witnesses who were hypnotized nefore trial to help refresh recollection, except in criminal case hypnotized witnesses by police are allowed if using procedures that protect against suggestion
Expert opinion
same except last element based on Kelley/Frye: the opinion must be based on principles generally accepted by experts in the field. This standard is not altered by Proposition 8 because it is a standard of relevance.
learned treatise
California: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.
imperachment by PIS
- California: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath
impeachment by prior felony convictions
- CA: All felonies involving “moral turpitude” are admissible but court must balance; felonies not involving moral turpitude are inadmissible in California. Prop. 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.
Prior misdemeanor convictions
- California: The CEC makes misdemeanor convictions inadmissible to impeach. But because of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct), subject to balancing probative value vs. unfair prejudice. This means misdemeanors are inadmissible in California to impeach in a civil case.
no ten year rule in CA but balancing includes age
hearsay
not affected by Prop 8
contemporaneous statement
similar to present sense impression but narrower: the declarant must be engaged in the conduct.
admission of party opponent
same as FRE, CA is exception
Vicarious party admission
employee statement only a party admission if employer is liable under respondeat superior
prior statement of witness
California: Witness’s prior inconsistent statements, prior consistent statements, and statements of identification admissible as hearsay exceptions (nonhearsay under federal law).
PIS
California: Hearsay if offered to prove truth of facts asserted but admissible under exception whether or not under oath
declaration against interest
CA also includes statements against social risk
no need to include corroborating evidence
unavailable declarant
Federal only: Declarant refuses to testify despite court order; declarant’s memory fails on the subject of her statement.
California only: Declarant suffers total memory loss; declarant refuses to testify out of fear
former testimony exception
CA civil case
In a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered, or
The former testimony is offered against the person who offered it in evidence in her own behalf in the earlier proceeding, or against a successor in interest of such person.
Deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse. Otherwise, the former testimony exception does not apply to deposition testimony given in the same case in which the hearsay is offered at trial
dying declaration
exception applies to all civil and criminal cases and declarant must be dead.
statement describing infliction or threat of physical abuse
Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances.
confrontation clause issue? if made during ongoing emergency not testimonial otherwise yes.
physical or mental condition for purpose of medical diagnosis or treatment
exception is narrower: A statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect.
CA exception when physical or mental condition is at issue
A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case—no requirement that statement be made for medical purposes. Declarant must be unavailable
business records exception
same as FRE but California exception does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses
Public records exception
does not place same restrictions on prosecution
Exception for judgment of previous conviction
The specific exception for convictions applies only in civil cases. Prop. 8 does not change this hearsay law. But, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases
Self-authentication writings
CA does not include business records and trade inscriptions
Best evidence rule
Admits duplicates and other written evidence of contents of original, such as handwritten notes
psychotherapist privilege
California only: (1) Psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger; (2) doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gunshot wounds and some communicable diseases
spousal testimonial privilege
CA: applies in both civil and criminal cases, spouse/partner cannot even be called to witnesss stand
other CA privileges
California also recognizes (1) privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence, (2) privilege for penitential communications between penitent and clergy, and (3) immunity from contempt of court for news reporter who refuses to disclose sources.
Preliminary determination of admissibility
judge bound by rules of evidence
judicial notice
Whether requested or not, court must take judicial notice of matters generally known within jurisdiction
conclusiveness
California: Court instructs jury that it must accept judicially noticed fact in both civil and criminal cases
FRE only civil, criminal is may
