CA Evidence* Flashcards

Question 1

Q

Introduction –> Overview

Answer

A

A fundamental difference between state and fed rules pertains to applicability in criminal trials.

—> FRE: apply to both civil and crim trials
—> CEC: governs both civil and crim trials, but not grand jury proceedings

Question 2

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Burden of Proof

Answer

A

The BoP refers to two separate concepts:

(1) burden of producing evidence, and
(2) burden of persuasion

Burden of persuasion remains w/ the P or prosecution.

Question 3

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Burden of Producing Evidence

Answer

A

Burden of producing evidence can shift during the hearing or trial.

Question 4

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Standards of Proof - Four Standards of Proof

Answer

A

(1) POTE
(2) CACE
(3) BARD
(4) Sufficient to sustain a finding

Question 5

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Standards of Proof - Preponderance of the Evidence

Question 6

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Standards of Proof - Clear and Convincing Evidence

Question 7

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Standards of Proof - Beyond a Reasonable Doubt

Question 8

Q

Burdens and Presumptions –> Burdens and Standards of Proof: Standards of Proof - Sufficient to Sustain a Finding

Question 9

Q

Burdens and Presumptions –> Presumptions: Definition

Answer

A

Presumptions are shortcuts to prove a point: if you can prove A, then the jury will presume B.

Distinction

FRE: party against whom presumption is directed has burden to produce contrary evidence (burden of persuasion never shifts).

—> Civil cases: state law governs
—> Criminal cases: no presumptions in favor or the prosecution

CEC: two types of presumptions - rebuttable and conclusive
CEC: two kinds of presumptions (not in crim cases)
—-> Thayer presumptions: shift the burden of producing evidence (same as FRE)
—-> Morgan presumptions: shift the burden of persuasion (does not exist in FRE)

Question 10

Q

Burdens and Presumptions –> Presumptions: Rebuttable Presumptions - General

Answer

A

Contrary evidence will burst the presumption.

—-> Conclusive: no contrary evidence - matters of public policy and substantive law

Question 11

Q

Burdens and Presumptions –> Presumptions: Rebuttable Presumptions - Presumption Affecting the Burden of Producing Evidence

Question 12

Q

Burdens and Presumptions –> Presumptions: Rebuttable Presumptions - Presumption Affecting the Burden of Proof

Question 13

Q

Burdens and Presumptions –> Presumptions: Conclusive Presumptions

Question 14

Q

Burdens and Presumptions –> Presumptions: Inferences

Question 15

Q

Admissibility of Evidence –> Types of Evidence: Direct Evidence

Question 16

Q

Admissibility of Evidence –> Types of Evidence: Circumstantial Evidence

Question 17

Q

Admissibility of Evidence –> Relevancy

Answer

A

Definition
Both CEC and FRE: evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be w/out the evidence.
—-> Some evidence books divide relevance into logical relevance (discussed here) and legal relevance (AKA policy exclusions) discussed below.

Distinction
FRE: any fact; it need not be a fact in dispute
CEC: any disputed fact of consequence and credibility of witnesses is always relevant.

See Prop 8

Balancing
Remember, the balancing test applies only to relevant evidence and is used to exlude relevant evidence that is not excludable or inadmissible on other grounds (AKA balancing objection is the last objection/consideration).
—-> FRE: ct may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
—-> CEC: ct (in its discretion) may exclude evidence if its probative value is substantially outweighed by the probability that its admission will=
(1) necessitate undue consumption of time, or
(2) create a substantial danger of undue prejudice, confusing the issues, or misleading the jury

Question 18

Q

Admissibility of Evidence –> Probative Value

Question 19

Q

Admissibility of Evidence –> Preliminary Facts

Answer

A

Judge as gatekeeper determines foundational matters (ie admissibility, privileges, hearsay) by a POTE.
—> Judge decides what the jury will get to hear as evidence.

Distinction

–> FRE: judge can make findings on foundational facts based on anything (including inadmissible evidence) to decide whether or not foundation has been met and whether the trier of fact will hear evidence.
–> CEC: judge is limited to admissible evidence only to decide whether foundation has been met

Question 20

Q

Admissibility of Evidence –> Judicial Notice

Answer

A

Must v. May
FRE: If requested, the ct must take JN of matters generally known in the jdx; if not requested, the ct may take JN.
CEC: Regardless of whether requested
—-> Mandatory: ct MUST take JN of info universally known (as well as legislative facts) which are not subject to judicial notice under the FRE; leg facts include CA and fed statutes, case law, rules of ct and ct records, as well as the meaning of English language words/phrases.
—-> Permissive: upon a proper request, MUST take JN when provided w/ the necessary info and proper notice to the opposing party; includes leg facts of other states and nations, as well as locally known and easily verifiable facts.

Civil v. Criminal
FRE
—-> Civil: jury MUST accept JN’d fact
—-> Criminal: jury MAY accept JN’d fact

CEC

—> Jury must accept the JN’d fact in both civil and criminal cases
—> Ct cannot take JN of any fact that the prosecution is required to prove BARD.

Question 21

Q

Admissibility of Evidence –> Error in Admission or Exclusion of Evidence

Answer

A

Exclusion in Error

–> Preserving on the record the judge’s ruling on evidence for appeal.
–> At the trial level, need to adequately describe evidence, explain why evidence is relevant, why evidence is admissible, why judge should let it in, or (if grounds for objections) state grounds for objection to admission of evidence.
–> If a party fails to preserve on the record at the trial level (or if you make a general objection) evidence will not be admissible on appeal, unless plain error is est’d.
–> Outcome would have been different

Question 22

Q

Privileges –> In General

Answer

A

3 Types of Privileges

(1) Those that protect confidential communications
- –> Most privileges
- –> Spouses
(2) Protect certain people from testifying
- –> Spouses
(3) Certain info from being testified about
- –> Self-incrim

Question 23

Q

Privileges –> Types of Privileges: Absolute Privileges

Question 24

Q

Privileges –> Types of Privileges: Qualified Privileges

Question 25

Q

Privileges –> Operation of Privileges: Exercise of Privilege

Answer

A

Burden of Proof
—> The person claiming the privilege must show that the privilege elements are met by a POTE (FRE and CEC)

FRE

–> No specific privilege provisions (CL applies)
–> Eavesdropper doctrine applies (eavesdroppers can testify to what they hear)

Diversity Cases in Fed Ct
—> State privilege law applies

CEC

–> Includes privilege provisions; will not recognize any privileges unless authorized by statute.
–> Presumption of confidentiality for communications made in the course of a privileged relationship (AC, spouse)
–> Eavesdropper doctrine does NOT apply (eavesdroppers CANNOT testify to what they overhear)
–> Prop 8 no impact on privileges

Question 26

Q

Privileges –> Operation of Privileges: Waiver of Privilege

Answer

A

Ask: did the holder disclose the communication to someone else?

Question 27

Q

Privileges –> Lawyer-Client Privilege

Answer

A

A communication between A and C or their representatives (intended by the client to be confidential and made to facilitate rendition of professional legal services) is privileges unless waived by the client.

FED

–> Attny MAY claim the privilege on behalf of the client
–> Privilege survives the death of client

CEC

–> Attny MUST claim the privilege if present when disclosure is sought and not otherwise instructed
–> Privilege services the death of the client, but ends when the estate has been discharged

Question 28

Q

Privileges –> Lawyer-Client Privilege: Exceptions

Answer

A

FED

–> Professional services were sought to further crime or fraud
–> Two or more parties consult an attny on a matter of common interest and the communication is offered by one of these parties against another

CEC
—> All of the FED exceptions plus 3:
(1 & 2) deal w/ writings affecting real property interests; and
(3) Privilege does not apply where attny reasonably believes disclosure is necessary to prevent crime that is likely to result in death or substantial bodily harm.

Question 29

Q

Privileges –> Lawyer-Client Privilege: Client’s Remedies for Disclosure

Question 30

Q

Privileges –> Physician-Patient Privilege and Psychotherapist-Patient Privilege

Answer

A

Doctor-Patient Privilege
FED
—> No CL dr-patient privilege
CEC
—> Statements made by a patient to a dr for the purpose of obtaining med treatment/diagnosis for physical, mental, or emotional condition are privileged.
—> Dr includes someone reasonably believed to be licensed, even if they are actually not (or no longer) are licensed.
—> Patient does not include research subjects

Psychotherapist-Patient Privilege
FED
—> CL privilege; patient holds privilege
CEC
—> Statements made by a patient to a psychotherapist (broadly defined to include more than a dozen categories) like marriage/family therapists, psychologists, clinical social workers, etc.)
—> Patient holds privilege

Question 31

Q

Privileges –> Physician-Patient and Psychotherapist-Patient Privileges: Exceptions to Physician-Patient Privilege

Answer

A

(1) Patient puts physical/mental condition at issue in the case (personal injury).
(2) Dr’s services were sought to aid in crime/tort or to escape capture after a crime/tort.
(3) Lawsuit involves dr-patient relationship (eg malpractice)
(4) Criminal cases or disciplinary proceedings, or those to terminate a license (such as a medical license)
(5) Where dr is req’d to report info to a public office (eg gunshot wounds and some communicable diseases)
(6) Commitment and competency proceedings
(7) Writings affecting property interests

Question 32

Q

Privileges –> Physician-Patient and Psychotherapist-Patient Privileges: Psychotherapist-Patient Privilege Exceptions

Answer

A

FED and CEC

(1) Patient puts mental condition at issue in case
(2) Psychotherapist’s services were sought to aid in crime/fraud/to escape capture after crime/tort
(3) Lawsuit involves relationship (malpractice)
(4) Commitment, competency, and sanity proceedings
(5) Patient is a danger to self/others

CEC only

–> Patient is under 16 years of age and therapist reasonably believes that child is a victim of a crime, and disclosure would be in the child’s best interest.
–> Tarasoff Exception: if therapist has reasonable cause to believe that patient is danger to self/others, and disclosure necessary to end danger, therapist MAY disclose.
———–> Est’s duty to warn, and thus the therapist MUST disclose to avoid tort liability, but not as a matter of evidence law
–> Writings affecting real property

Question 33

Q

Privileges –> Clergy-Penitent Privilege

Answer

A

FED
—> Clergy person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication received in the role of spiritual advisor.

CEC
Two Privileges (one similar to FED):
(1) Clergy member privilege applies to penitential communications (made to someone authorized/accustomed under the religious rules to hearing them) and who is religiously bound to keep them confidential.
(2) Held by the clergy member, who has the privilege to refuse to disclose a penitential communication
—> Clergy member has no privilege to prevent others from disclosing

Question 34

Q

Privileges –> Marital Communications Privilege

Answer

A

Same under FED and CEC (no distinctions).

–> Protects confidential communications made while they were validly married
–> Presumption of confidentiality
–> Both spouses are holders of the privilege; thus, neither spouse can unilaterally waive the privilege w/out the other’s consent

Exceptions (priv does not apply)

(1) if the marital communication was made (in whole or in part) to enable or aid anyone to commit / plan to commit a crime/fraud
(2) in a civil action between parties
(3) in a crim pros where one spouse is charged w/ a crime against the other spouse or one of their children
(4) Commitment and competency proceedings
(5) If the crim D spouse wants to disclose the communication to aid in the defense, there is no priv

Question 35

Q

Privileges –> Spousal Testimonial Privilege

Answer

A

FED and CEC

–> Permits the witness spouse to refuse to testify against his/her crim D spouse.
–> Protects all communications, regardless of confidentially, both during and before marriage
–> Includes testimony, observations, and impressions (as long as spouses are validly married at the time of testimony)
–> Witness spouse holder of privilege and can waive

FED Only
—> Applies only in crim cases

CEC Only
—> Applies in civil and crim cases

–> Witness spouse privileged to decline to testify; 2 distinct privileges:
(1) Not to be called to the stand as witness by adverse party in any case in which spouse is a party
(2) Privilege not to testify against the spouse in any proceeding, whether spouse is a party or not

—> Exceptions: in addition to marital communications privilege exceptions, in a proceeding for a crim act that occurred prior to marriage, if the witness spouse was aware prior to marriage that the D spouse had been arrested or charged w/ a crime.

Question 36

Q

Privileges –> Other Privileges

Answer

A

Journalist: Reporter’s Shield Law

–> Under state law, provides immunity from contempt of ct for news reporter who refuses to disclose sources.
–> Note: in crim cases, ct can compel disclosure to prevent violating the crim D’s rights to DP and a fair trial

Sexual Assault Counselor / V Privilege

–> Confidential communications w/ authorized sexual assault counselor or case worker are privileged
–> Similar privilege for DV cases and human trafficking cases
–> Privilege not absolute; ct can compel disclosure where the probative value of statements outweighs the prejudicial effect (and in child abuse proceedings)

Question 37

Q

Witness Testimony –> Competency to Testify: General Principle

Answer

A

Except as otherwise provided by statute, every person (irrespective of age) is qualified to be a witness in a CA ct.

Question 38

Q

Witness Testimony –> Competency to Testify: Disqualification

Answer

A

FRE: Everyone is competent to be a witness in federal court.

CEC: A person is disqualified to be a witness if he/she is:

–> incapable of expressing himself/herself concerning the matter so as to be understood, or
–> does not understand the duty to tell the truth.

Question 39

Q

Witness Testimony –> Competency to Testify: Personal Knowledge

Answer

A

Under both FRE (602) and CEC (702), lay witnesses (not appearing as experts) can testify only about matters of which they have personal knowledge.
—> Must have experienced something through the five senses.

Question 40

Q

Witness Testimony –> Competency to Testify: Oaths

Answer

A

FRE: Before testifying, every witness must take an oath or affirmation that he/she will testify truthfully.

CEC: Before testifying, every witness must take an oath that he/she will testify truthfully except if he/she is:

(1) a child under the age of 10, or
(2) a dependent person with a substantial cognitive impairment.
- –> May be required only to promise to tell the truth.

Question 41

Q

Witness Testimony –> Competency to Testify: Interpreters

Question 42

Q

Witness Testimony –> Competency to Testify: Judges, Arbitrators, and Midators

Answer

A

Judge

–> FRE: Presiding judge absolutely barred from testifying as a witness in the trial.
–> CEC: Presiding judge may testify if no party objects.

Question 43

Q

Witness Testimony –> Competency to Testify: Jurors

Answer

A

At trial/Pre-verdict:

–> FRE: A juror may not testify as a witness at trial in front of the members of the jury.
–> CEC: A juror may testify as a witness in the trial for which he is sitting unless a party objects.

After trial/Post-verdict (FRE 606(b); CEC 1150)

–> FRE: Juror can only provide information regarding outside influences that may have affected the verdict, but cannot testify as to how those influences affected their reasoning.
–> CEC: More expansive than FRE. Jurors can provide information on any improprieties or influences that may have affected the jurors (including those that occurred in the jury room), but still cannot testify as to how those influences affected their reasoning.

Question 44

Q

Witness Testimony –> Witness Credibility

Question 45

Q

Witness Testimony –> Mode and Order of Witness Examinations

Question 46

Q

Witness Testimony –> Impeachment and Rehabilitation: In General

Answer

A

Impeachment means calling into question a witness’s credibility.
—> There are several methods to impeach, including:

(1) Contradiction
- –> Simply means introducing evidence or testimony that contradicts what the witness said.
(2) Prior inconsistent statement
(3) Bias, interest, or motive
(4) Prior convictions
(5) Prior bad acts

Rehabilitation: After impeaching, the proponent can try to reinstate the credibility of the witness by:

–> Explaining on re-direct exam.
–> Offering affirmative evidence of the witness’s character for honesty or veracity.
–> This can be broader than truthfulness or untruthfulness under the FRE.

Question 47

Q

Witness Testimony –> Impeachment and Rehabilitation: Impeachment by Reputation or Opinion Regarding Veracity

Question 48

Q

Witness Testimony –> Impeachment and Rehabilitation: Impeachment by Prior Conviction: Felony

Answer

A

FRE

–> Crimes involving dishonesty: Felony convictions involving false statements (perjury, fraud) are admissible with no balancing needed, except for old convictions—over 10 years old.
–> Crimes not involving dishonesty: Felony convictions NOT involving crimes of dishonesty may be admissible but subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).

CEC

Moral Turpitude: All felonies involving moral turpitude are admissible subject to the CEC 352 balancing test.

No Moral Turpitude Involved: Inadmissible; Prop 8 does not make these crimes admissible in criminal cases because crimes must involve moral turpitude to be relevant for impeachment.

Moral Turpitude = Readiness to do evil:

–> Most sex crimes
–> Crimes of dishonesty (perjury, grand theft, receiving stolen property, tax evasion)
–> Crimes of violence (assault, battery, murder, manslaughter, rape, spousal abuse, vandalism)
–> Crimes against property (burglary, arson)
–> Other serious crimes (escape, drug sales, hit and run, kidnapping, extortion, statutory rape)

Crimes NOT involving moral turpitude

–> Crimes involving negligence or unintentional acts
–> Involuntary manslaughter
–> Drug possession

Time Limit: none; do balancing test (the longer ago the crime, the less probative)

Question 49

Q

Witness Testimony –> Impeachment and Rehabilitation: Evidence of Prior Bad Acts

Answer

A

FRE

–> Truthfulness: Must bear on truthfulness or lack thereof of witness.
–> Civil and criminal cases.
–> Subject to balancing test.
–> Reputation and opinion only on direct exam.
–> No extrinsic evidence; can question witness about specific instances only on cross-examination, but are stuck with the answer.

CAL
Prior bad acts/non-convictions are inadmissible to impeach in civil cases.
—> But, Prop. 8 permits their use for impeachment in criminal cases for any person who has taken the witness stand.
Moral turpitude: To be relevant for credibility impeachment, the misconduct must be an act of moral turpitude.
—> Moral turpitude is defined as a “readiness to do evil,” and evil includes dishonesty.
—> Subject to CEC 352 balancing test.
—> Extrinsic evidence on cross-examination can be used.

Question 50

Q

Witness Testimony –> Impeachment and Rehabilitation: Evidence of Prior Inconsistent Statements

Answer

A

Remember, if the statement is offered only to impeach, there are no hearsay concerns.
—-> If the statement is being offered for the truth of the matter asserted therein, you need to consider hearsay.

FRE: If prior inconsistent statement was given under oath at trial or deposition, it is excluded from the hearsay rule and can be admitted to prove the truth of the facts asserted.

CEC: A statement is considered hearsay, but there is a hearsay exception for prior inconsistent statements when offered after inconsistent testimony at trial.
—-> Prior statement need not have been made under oath.

Question 51

Q

Witness Testimony –> Impeachment and Rehabilitation: Evidence of Good Character

Question 52

Q

Witness Testimony –> Impeachment and Rehabilitation: Evidence of Religious Beliefs

Question 53

Q

Witness Testimony –> Impeachment and Rehabilitation: Evidence of Polygraph Examinations

Question 54

Q

Witness Testimony –> Special Methods of Examination: Leading Questions

Question 55

Q

Witness Testimony –> Special Methods of Examination: Hypnosis (Refreshing Recollection)

Answer

A

FRE: No rule limiting use of hypnosis for refreshing recollection

CEC: Disqualifies some witnesses from testifying post- hypnosis, but allows such testimony where specific guidelines are followed.

—> Civil: witnesses who have been hypnotized cannot testify
—> Criminal: a witness who has been hypnotized can testify if:
(1) there is a written record of the witness’s pre-hypnosis recollection
(2) the hypnosis session was video recorded and conducted by a licensed prof (and police, pros, or defense counsel are not present); and
(3) the witness testifies only about things remembered before the hypnosis
—> Criminal: a criminal D who has undergone hypnosis can testify w/out restriction

Question 56

Q

Witness Testimony –> Opinion Testimony (Lay Opinion)

Answer

A

Both CEC and FRE: Lay witnesses can testify to an opinion if opinion is:

—> rationally based;
—> on the witness’s perception; and
—> helpful to a clear understanding of the witness’s testimony or determination of fact in issue.

Legal conclusions are not admissible as lay opinion evidence, but lay opinion on things like speed of a car, handwriting, sanity, and intoxication are permissible lay opinions; Remember VEMPSS.

—> Values
—> Emotions
Lay witnesses cannot offer a clinical diagnosis, but can, for example, testify that someone was upset or intoxicated.
—> Measurements
Speed of a vehicle; height, weight, distance.
—> Physical states
Intoxicated; tall/short; fat/skinny; healthy/sick; happy/sad.
—> Sensory states
Smells, sounds, tastes, and colors.
—> Sanity of a testator.

Question 57

Q

Witness Testimony –> Expert Testimony: Expert Opinions

Answer

A

Requirements to qualify

—> Helpful to assist trier of fact (judge/jury).
—> Expert witness is qualified.
Special skills
Knowledge
Education
Experience
Training
—> Witness believes in opinion to reasonable degree of certainty.
—> Opinion is based on reliable principles that were reliably applied.

Question 58

Q

Witness Testimony –> Expert Testimony: Use of Scientific Procedures (Scientific Evidence)

Answer

A

FRE: Daubert standard (CA federal case) formula applies to all expert testimony.

—> Judge is ultimate gatekeeper.
—> Very restrictive. The Supreme Court offered a list of factors (TAPES) that could be considered by judges when determining the reliability of an expert’s opinion testimony.
Tested
Acceptance in the general community
Peer reviewed research and publications
Error rates
Standards, reliable, and reliably applied

CEC: If NOT novel or new to science, then reasonable reliance test applies.

—> Kelly/Frye. If novel scientific area/theory, must have gained general acceptance in the relevant scientific community.
—> As a practical matter, there must be a published appellate opinion or a full-blown evidentiary hearing on the area.
—> Kelly/Frye is not applicable to non-scientific or medical opinions.

Supported by Proper Factual Basis

—> FRE: Generally, opinion can be based on admitted, admissible, and potentially inadmissible evidence, if the judge does a 703 balancing analysis.
—> CEC: Expert can base opinion on inadmissible evidence (e.g., hearsay).

Question 59

Q

Witness Testimony –> Expert Testimony: Use in Criminal Trials

Question 60

Q

Witness Testimony –> Expert Testimony: Cross-Examination of Expert Witnesses

Question 61

Q

Character Evidence, Writings, and Other Types of Evidence –> Character Evidence: Evidence of Character to Prove Conduct

Answer

A

Character evidence is information about a person’s disposition, used to prove they would have acted or not acted in accordance with a trait on a specific occasion.

—> Character evidence can be in the form of reputation, opinion, or specific acts.
—> Character evidence can be presented in either civil or criminal cases, but more often arises in criminal cases.

Question 62

Q

Character Evidence, Writings, and Other Types of Evidence –> Character Evidence: Evidence of Habit or Custom

Question 63

Q

Character Evidence, Writings, and Other Types of Evidence –> Character Evidence: Character Evidence in Criminal Actions

Answer

A

Under both FRE and CEC, the door to using CE to prove D’s conduct is closed at the start of the case.

—> The prosecution cannot be the first to introduce CE but if D opens the door by introducing CE (either good character of D or bad character of V), the pros can rebut under some circs.
—> Prop 8 - no impact here

Question 64

Q

Character Evidence, Writings, and Other Types of Evidence –> Character Evidence: Evidence of Sexual Conduct, Etc.

Answer

A

Exception to CE in Crim actions rule (pros cannot offer first)
Prosecution may be the first to offer D CE to prove D’s conduct in following instances:
—-> FRE and CEC: in cases of sexual assault, pros may offer evidence that D committed other acts of sexual assault
—-> FRE only: also includes other acts of child molestation
—-> CEC: In pros for crimes of DV, elder abuse, or dependent abuse, pros may offer evidence that D committed other acts of DV, etc. (broader)

Answer 40

A

Best Evidence/Secondary Evidence Rule
Rule applies only where evidence is offered to prove the contents of a writing (broadly defined as tangible process to record words, pictures, and sounds—includes recording, video, photo, CD/DVD/MP3).
—-> The rule requires proof of contents with original, but with many exceptions.
—-> So the real question becomes: other than the original, what tangible evidence is admissible to prove contents of a writing, recording, video, or photo?

FRE: Duplicates admissible.

—> A duplicate is a copy of an original produced by the same impression that produced the original or by a machine (e.g., photocopier, camera, carbon copy).
—> Handwritten copy is not a duplicate.

CEC: Secondary Evidence Rule also admits duplicates and other written notes, such as handwritten notes.
—-> Prop 8 does not apply to the Secondary Evidence Rule; so even in a criminal case, Secondary Evidence Rule will apply and may exclude relevant evidence.

NOTE: Remember, the original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if the mnemonic LOCS applies.

—> Lost:
All the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith.
—> Opponent:
The opponent has possession of the original and has refused to deliver it, even upon notice by the pleadings or by the court.
—> Closely related:
Where the writing, recording, or photograph is not closely related to a controlling issue, i.e., witness merely refers to a writing, but not to prove its contents.
—> Subpoena:
The original cannot be obtained by any available judicial procedure.

Answer 41

A

Authentication is req’d before a writing or secondary source of its contents may be received in evidence.
–> All tangible evidence must be authenticated

May be accomplished by either:

(1) the introduction of evidence suff to sustain a finding that it is the writing that the proponent of the evidence claims it to be; or
(2) the est’ment of such facts by any other means provided by law

Ancient Documents
Document must be of a certain age and found in a place where it would likely be if it were authentic, nothing pointing to doubts about authenticity.
—> FRE: Document must be at least 20 years old.
—> CEC: Document must be at least 30 years old.

Self-Authenticating Documents (FRE 902)
Certain documents are self-authenticating.
—> FRE: Includes certified copies of public documents (deeds), acknowledged documents, official publications (government pamphlets), newspapers, periodicals, business records, trade inscriptions, and certified copies of business records.
—> CEC: Has a presumption of authenticity for certified copies, official seals, domestic signatures, and foreign official signatures, but not for trade inscriptions.
—> Other documents that are self-authenticating under FRE must be independently authenticated under the CEC.

Answer 42

A

Offers/promises to furnish money or any other thing, act, or service to another (including med expenses) in response to the other’s loss or damage is inadmissible to prove liability on the part of the offeror or promisor.

-> CEC: benevolent gesture law allows party in accident to apologize or express sympathy relating to the pain, suffering, or death of a person involved in an accident (made to that person or to the family of that person) w/o fear that the statement will be used against him as evidence of an admission of liability.
-> Benevolent gestures: actions that convey a sense of compassion or commiseration emanating from humane impulses

Answer 43

A

Evidence of a criminal D’s guilty plea which he later withdrew, or of an offer to plead guilty to a crime, is inadmissible in any action or proceeding of any nature.

Answer 44

A

Definition of Hearsay
–> An (1) out-of-court (2) statement (3) offered for the truth of the matter asserted.

Burden

-> FRE: Objecting party has the burden to prove it is hearsay.
-> CEC: Proponent must show that it is NOT hearsay if an objection is made.

Exclusions/Exceptions

-> FRE: Both exclusions and exceptions to the hearsay rule; judge may consider the statement itself as part of the proof of foundation for exception/exclusion.
-> CEC: Only exceptions to the hearsay rule; judge cannot consider statement itself as part of the proof of the foundation for the exception.

Prop 8: Hearsay law is exempt from Prop 8 (even in crim cases, all Evidence Code applies)

Answer 45

A

Since hearsay evidence is ordinarily inadmissible, statutory exceptions to the rule against hearsay provide instances in which such testimony is admissible for the purpose of proving TOMA.
–> A number of hearsay exceptions req that the declarant be unavailable as a witness.

Answer 46

A

Definition (Party Admission)
Under both FRE and CEC, a party admission is a statement by a party, or someone whose statement is attributable to a party, offered by the party’s opponent.
–> FRE: Admissible as an exclusion; establish elements by preponderance.
–> CEC: Admissible as an exception; establish elements by sufficiency.

Adoptive Admissions: same under the CEC and FRE, except for standard.

Authorized Admissions:

-> FRE: Authorization is to speak on a topic/subject.
-> CEC: Authority is to speak “for” the party, which does NOT include statements made TO the party.

Vicarious Party Admission

-> FRE: Statement by employee of party is a party admission of employer if: (1) the statement concerned a matter within scope of employment, and (2) was made during employment relationship.
-> CEC: Only statements that are by employees whose conduct makes the employer vicariously liable under principle of respondeat superior are admissible. Employer is responsible for employee’s words only if also responsible because of that employee’s conduct. No issue about whether the statement is about something within the course and scope of the agency.

Co-Conspirator Statement

-> FRE: Admissible as an exclusion; establish elements by preponderance.
-> CEC: Admissible as an exception; establish elements by sufficiency.

Answer 47

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Hearsay evidence is admissible when offered against the P in a wrongful death action in which the declarant is the deceased.

Answer 48

A

Evidence of a prior statement made by a witness that is inconsistent w/ his testimony at the hearing is admissible under a hearsay exception.

Answer 49

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Evidence of former testimony is admissible if the declarant is unavailable as a witness and the former testimony is offered against the person (or his successor in interest) who offered it in:

(1) evidence in his own behalf on the former occasion or
(2) the party against whom the former testimony is offered was a party to the proceeding in which the testimony was given and had the right/opportunity to cross examine the declarant w/ an interest and motive similar to the current hearing.

CEC only: Civil case – Evidence can be offered against a non-party, non-predecessor, if someone else with a similar interest and similar motive to the party against whom the testimony is being offered was a party in previous case, and had a chance to cross-examine the witness at that trial or hearing.
—> If not, inadmissible.

CEC only: Depositions in the current case are not former testimony under the CEC.
—> Depositions in other cases are considered former testimony.

Answer 50

A

FRE—Present Sense Impression: Statement made by the declarant describing or explaining an event or condition made while or immediately after perceiving it. Does not need to be “excited” but needs to be made while or immediately after perceiving.

CEC—Contemporaneous Statement: Statement offered: (1) to explain, qualify, or make understandable conduct of the declarant, AND (2) made while the declarant was engaged in such conduct.

—> Declarant’s words while doing something or experiencing something are admissible under this exception, if the declarant is describing his or her own conduct at the time.
—> This exception is much narrower than the FRE present sense impression exception to the hearsay rule.
—> NOTE: CEC contemporaneous statement exception focuses on the declarant’s subjective intent regarding the act, while the FRE present sense impression exception includes statements describing external phenomena perceived by the declarant.

Answer 51

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Evidence of a statement made by a dying person concerning the cause and circumstances of his death is admissible if the statement was made upon his personal knowledge and under a sense of immediately impending death.

—> Unlike FRE (does not apply in crim cases) CA dying declarations apply to criminal and civil cases
—> In CA, declarant is dead; FRE just unavailable

Answer 52

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Declaration of Then Existing Physical or Mental Condition

—> Under both FRE and CEC, statement of declarant’s then-existing physical or mental condition or state of mind (present tense) is admissible to show the condition or state of mind.
—> Remember, “then-existing” means that feeling, emotion, plan, etc. existed at the time the words were first spoken.
—> Statement describing past physical or mental condition—as memory or belief—is not admissible to prove the fact remembered or believed under this exception, but in California, look at CEC 1251 for past conditions.
—> Under the CEC 1252, if circumstances indicate a lack of trustworthiness, then the statement will be inadmissible despite satisfying the elements of the exception.

Statement of Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment:

—> FRE: A statement describing past or present mental or physical condition of the declarant or of another person is admissible if made for and pertinent to medical diagnosis or treatment.
—> CEC: A statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if:
by a child victim age 12 or under
describing an act of child abuse or neglect.
—————> This exception is much narrower than FRE exception.

CEC 1251 ONLY: Statement of declarant’s past physical or mental condition is admissible to prove condition if that past condition is AT issue in the case.

—> Includes a statement of intention.
—> No requirement that the statement be made for medical diagnosis or treatment.
—> Declarant must be unavailable.

Answer 53

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Under both FRE and CEC, there are four requirements:

(1) The business record must be made in the regular course of business (and not made solely in anticipation of litigation).
(2) It must be made at or near the time of matters described, by a person with knowledge of the facts in that record.
(3) Custodian testifies to the record’s identity and its mode of preparation.
(4) Indicia of trustworthiness in method and time of preparation of record.

Remember that absence of records can be used to show something did not happen.

BoP

–> FRE: Opponent of evidence has burden to prove business record does not meet requirements by preponderance of evidence.
–> CEC: Proponent of evidence has burden to prove the elements by a preponderance.

Answer 54

A

Similar foundation to business records, but do not need to be made at or near the time of matters described and not in regular course of business.

FRE: Admissible if the record:

(1) describes the activities or policies of the office;
(2) describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or
(3) contains factual findings resulting from an investigation made pursuant to authority granted by law, unless untrustworthy (not available in criminal cases).

-Opponent of evidence has burden to prove business record does not meet requirements by preponderance of evidence.

CEC:

–> Unlike FRE, CEC does not limit the use of official reports in criminal cases, so there is no exclusion of reports containing matters observed by police officers and other law enforcement personnel.
–> Proponent of evidence has burden to prove business record meets all requirements by preponderance of evidence.

Answer 55

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FRE: Admissible to prove anything if treatise is accepted authority in field.

CEC: Much narrower; includes just books related to science and art, published maps and charts, and excludes medical treatises entirely.
—> Only admissible to show matters of general notoriety or interest.

Answer 56

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For crim matters in CA ct, discuss Prop 8 (the “Truth in Evidence” amendment to CA).

–> While technically made all relevant evidence admissible in a criminal case, even if otherwise objectionable under the CEC (subject to some exceptions) most of its impact has been negated by subsequent statutory elements
–> Now Prop 8 only has an impact in one area: the credibility of witnesses and impeachment
–> No need to discuss in civil cases

Prop 8 affects impeachment of witnesses for crimes/prior bad acts, and allows good character on credibility to be used prior to impeachment w/ bad character on credibility.
—-> No impact on hearsay, or privileges, or whatever other issue involved.

Answer 57

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Judge decides whether there is suff evidence from which a reasonable factfinder could find the fact to be true.

Distinction

–> FRE: does not provide a mechanism for requesting or req’ing jury instructions
–> CEC: specifically lists the categories covered by the suff’y standard, and provides that the judge may (or on request shall) instruct the jury to disregard the evidence unless they find the fact exists.

Answer 58

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When one party introduces party of a writing or recorded statement, adverse party may req introduction of any other party that in fairness should be considered at that time.

Distinction

–> CEC: broadens to apply to conversations, declarations and acts, which need not be in writing, nor recorded
–> FRE: unless the statement was written down or recorded, the rule of completeness would not render the second sentence admissible

Answer 59

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Subsequent Remedial Measures

—> Evidence of safety measures or repairs after an accident is inadmissible to prove neg.
—> FRE: exclusion of sub remedial measures covers neg AND products liability/SL cases
—> CEC: exclusion of sub remedial measures does NOT apply in strict products liability cases and therefore evidence of a SRM is admissible

Settlement Offers

—> FRE: both FRE and CEC exclude settlement offers and statements made in connection w/ settlement offers for purposes of proving liability, provided the claim is disputed either as to validity or amount.
—> CEC: extends this rule to discussions and statements made in the course of those negotiations

Offers to Pay Medical Expenses

—> Evidence of payments/offers to pay med expenses inadmissible when offered to prove liability for injuries in question.
—> FRE: only excludes offers to pay med expenses (NOT accompanying statements; those only excluded when part of settlement offer)
—> CEC: Broader rule, also makes inadmissible statements, writings, and benevolent gestures

Plea Negotiations

—> Some conversations in plea bargain discussions are not admissible in a civil or criminal case if a plea agreement is not reached (conversations are considered protected and therefore inadmissible).
—> FRE: limited to conversations with prosecutors
—> CEC: broader rule, covers convos w/ pros AND the police (as long as they are statements made in the course of bona fide plea negotiations; does not include unsolicited offers to plead guilty, statements made to transporting POs, or spontaneous statements in ct.

Expressions of Sympathy (CEC Exclusive)

—> In a civil case, CEC also excludes the admission of statements, writings, and benevolent gestures expressing sympathy relating to the pain, suffering, or death of a person involved in an accident, which are made to the person/their family.
—> But statements of fault made in connection w/ such an expression NOT excluded

Mediation Provisions (CEC Exclusive)

—> In non crim proceedings, evidence of statements, admissions, writings, other communications, and settlement discussions made in course of mediations, is inadmissible (disclosure cannot be compelled).
—> Mediator reports and findings cannot be used for other purposes unless all parties expressly agree.
—> Protection continues after the mediation ends

Answer 60

A

Generally, character evidence is inadmissible unless it is an essential element of a claim or defense (e.g., negligent hiring, negligent entrustment, defamation, child custody).

FRE 415: One additional exception where defendant’s character can be used to prove conduct in conformity.
—-> In a case where the claim is based on damages resulting from sexual assault or child molestation, defendant’s prior acts of sexual assault or child molestation are admissible to prove defendant’s conduct in this case.

CEC: CEC 1106 follows FRE 415 for sexual harassment, assault, and battery, but not child molestation.
—-> Under the CEC, child sexual assaults are more broadly covered, whereas the FRE applies only to the child molestation.

Answer 61

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Mercy Rule
Both FRE and CEC allow a criminal defendant to introduce evidence of good character that would be inconsistent with the commission of crime.
—-> This opens the door and allows the prosecution the opportunity to rebut such evidence with evidence of the defendant’s bad character.
—-> Defendant’s character evidence must be related to the crime charged; cannot introduce evidence of character trait for peacefulness/nonviolence in connection with a crime where no violence is at issue.
—-> When prosecution rebuts with evidence of defendant’s bad character:
————–> FRE: On direct examination, reputation and opinion only. On cross examination, reputation, opinion, and an inquiry into specific acts.
————–> CEC: When attacking defendant’s character, whether direct or cross, reputation and opinion only are allowed, unless the defendant takes the witness stand. If so, then specific instances impacting credibility are permissible under Prop. 8.

Answer 62

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Victim’s Character
D opens door by introducing evidence of victim’s bad character.
—-> FRE: where the ct has admitted evidence of V’s character offered by the accused, pros may offer contrary evidence about that V character trait.
————-> Pros may also offer evidence that the accused has the SAME character trait; any character trait is fair game so long as it is the same trait.
————-> Remember, under FRE, on direct, only reputation and opinion
—-> CEC: Same as above under FRE for V CE
————-> Where the ct has admitted evidence of V’s character for violence offered by the accused, pros may offer evidence that accused has violent character (narrower version of FRE, limits trait to violence)
————-> When attacking and rehabilitating the V’s character in CA (whether on direct or cross) all methods are available (reputation, opinion, and specific acts)

Answer 63

A

FRE: in a homicide case when D claims self-defense or introduces any evidence that victim was first aggressor, the pros may automatically offer evidence of the victim’s trait for peacefulness/nonviolence to rebut evidence that the V was first aggressor.

CEC: No similar rule
—-> In CA, self defense claim not considered an attack on V’s character, so pros cannot automatically offer CE of V’s peacefulness/nonviolence

Answer 64

A

Prop 8 does not apply to evidence barred by rape shield law.

FRE Criminal: evidence offered to show the alleged V’s sexual behavior, sexual predisposition and other sexual history is excluded

—> Applies for use as impeachment and CE
—> Exceptions:
(1) consent - past acts w/ D tend to show consent
(2) source of semen or injury - past acts w/ ppl to show that D was not source of semen/injury
(3) constitutional rights - if exclusion of evidence would violate any USC right of the D (CClause)

FRE Civil: Ct may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs danger of harm to any V and of unfair prejudice to any party

CEC Criminal: CA permits evidence of V’s sexual conduct to impeach the testimony of an alleged V (or otherwise witness) in a pros for sexual assault crime. including assault w/ intent to commit, attempt to commit, or conspiracy to commit such a crime

CEC Civil: California permits evidence of the plaintiff’s sexual conduct to be used to attack the plaintiff’s credibility in actions alleging sexual harassment, sexual assault, or sexual battery.
—-> If the plaintiff offers evidence of the complaining witness’s sexual conduct, then the defendant can offer rebuttal evidence.

Answer 65

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Writings

—> FRE: If a witness uses a writing to refresh her recollection prior to testifying, the adverse party is entitled to have the writing produced only if the court in its discretion determines that production of the document is necessary in the interests of justice.
—> CEC: The writing must be produced if requested by the opposing party.
—> Exception: Production is excused if the writing is not in the possession, custody, or control and was not reasonably procurable.

Also see Hypnosis

Answer 66

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FRE

—> Crimes of dishonesty: Misdemeanor convictions where an element of the crime requires dishonesty or false statements (perjury, fraud) are admissible with no balancing needed except for old convictions—over 10 years old. Same rule as felony convictions.
—> Crimes not involving dishonesty: Misdemeanor convictions not involving false statements are inadmissible.

CAL: Makes misdemeanor convictions inadmissible; however, they are admissible if relevant to credibility, and involve moral turpitude, in criminal cases under Prop. 8.

—> This is the rule under California state law—Prop 8—but it is not pursuant to the California Evidence Code. That is why this section has state rule denoted by “CAL” and not “CEC.”
—> Civil cases: Inadmissible. Prop 8 has no application to civil cases.
—> Criminal cases: Prop 8 in play.

Answer 67

A

If prior consistent statements are otherwise admissible on the issue of witness credibility, they are also admissible to prove the truth of their contents.

FRE:
To rehabilitate the witness after an inference of recent fabrication has been raised; or
—-> Limited use, as the PCS must predate the motive to lie.
—-> To rehabilitate the declarant’s credibility as a witness when attacked on another ground (i.e., charges of inconsistency or faulty memory).

CEC: Evidence of a PCS is admissible if:

The evidence is offered after either:

—> Evidence of a prior inconsistent statement has been admitted for the purpose of attacking the witness’s credibility; or
—> An express or implied charge has been made that the witness’s testimony is recently fabricated or is influenced by bias or other improper motive/influence; and
—> The PCS was made prior to the alleged inconsistent statement or the arising of the alleged bias, motive for fabrication, or other improper motive.

Answer 68

A

FRE and CEC: Out-of-court statement by a witness identifying the accused is admissible if: (1) statement of identification was made after perceiving person, and (2) declarant testifies at trial and is subject to cross-examination about the statement.

—> Look out for prior out-of-court identifications by a percipient witness who is not testifying at the current trial and therefore is not subject to cross-examination.
—> This hearsay exemption (FRE) or exception (CEC) cannot apply if the declarant is not testifying at trial.

FRE: Admissible as exclusions to hearsay.

CEC:

(1) Hearsay exception.
(2) Statements of identification are limited to identity of a perpetrator of a crime or other occurrence.
(3) Additional requirements (more difficult to get statement in):
- —> Statement was made at a time when the crime or other occurrence was fresh in the witness’s memory; and
- —> Witness must testify that he made the identification and that it was a true reflection of his/her opinion at that time.

Answer 69

A

FRE—Excited Utterance: Statements that (1) relate to a startling event or condition, and (2) were made spontaneously while the declarant was under the stress of excitement caused by such event, (3) need not be immediate or spontaneous (if still under the condition of excitement, excited utterance exception will still apply).

CEC—Spontaneous Statement; Statement must:

—> Narrates, describes or explains
—> An event, act or condition
—> Perceived by the declarant
—> Made spontaneously
—> While under the stress of excitement
—> Caused by such perception.

Answer 70

A

Requirements

—> Unavailable declarant;
—> Statement describing or explaining infliction or threat of physical abuse;
—> Made at or near time of injury or threat;
—> Not more than five (5) years previously;
—> In writing, recorded, or made to police or medical professionals;
—> Under trustworthy circumstances.

This exception was the basis for admitting calls from Nicole Simpson to the domestic abuse shelter in the civil trial of OJ Simpson, and was enacted by the legislature after that same evidence was deemed inadmissible in the criminal trial.

Crawford/Confrontation Clause Consideration: If a statement is made to police and could be considered testimonial, raise the Confrontation Clause issue.
—> The statement could still be inadmissible, even though it qualifies for the OJ hearsay exception, because it may violate the Confrontation Clause under Crawford and subsequent cases.

Answer 71

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FRE: A statement by an unavailable declarant is admissible if, at time it was made, it was against the financial or criminal interest of the declarant (against propriety or pecuniary interest, or exposed the declarant to civil or criminal liability). (3P’s: Penal, Pecuniary, Proprietary)
—> Where defendant seeks to introduce such a statement to exculpate himself or inculpate others, the statement must be corroborated to be admissible as a declaration against interest.

CEC: Broader then FRE.
—> A statement by an unavailable declarant is admissible if, at the time it was made, it was against the financial or criminal interest of the declarant, or the statement was against the social interest of the declarant because it risked making the declarant an object of hatred, ridicule, or social disgrace.

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