CA Evidence

Question 1

Judges

Answer 1

FRE: a presiding judge may not testify as a witness.

CEC: A judge may testify as a witness if no party objects, otherwise he may not.

Question 2

Jurors

Answer 2

FRE: Jurors may only serve as witnesses to provide info about EXTERNAL influences.

CEC: Jurors can serve as witnesses at trial if no party objects.
—> Jurors can serve as witnesses post-trial to provide info on internal or external improprieties but cannot explain their impact.

Question 3

Hypnosis

Answer 3

FRE
No restrictions

CEC

• –> CA does NOT permit previously hypnotized witnesses to testify in CIVIL cases.
• –> In criminal cases, a previously hypnotized witness CAN testify IF:
  1. the witness testifies only about things remembered BEFORE the hypnosis;
  2. there is a written RECORD of the witness’s PRE-hypnosis recollection;
  3. the hypnosis session was VIDEO recorded;
  4. the hypnotist was a LICENSED professional; and
  5. police, prosecutor or defense counsel were not present during the hypnosis session.
• **Note that a criminal D who has undergone hypnosis can testify w/o restriction.

Question 4

Question of Sanity - Lay or Expert Witness Opinions

Answer 4

FRE (limited)
Under FRE, a lay witness may only give opinion testimony regarding the sanity of a person where the witness is a SUBSCRIBING WITNESS to a will and is giving an opinion about the sanity of the testator.

CEC (less limited)
In CA, a witness may state his opinion as to the sanity of an INTIMATE ACQUAINTANCE.

Question 5

Use of Scientific Procedures

Answer 5

FRE: Applies the Daubert test when an expert opinion is based on novel scientific principles or techniques.
—> This is a slightly looser standard than Frye, but rarely results in different outcomes.

CEC: CA applies the REASONABLE RELIANCE test, except w/ novel techniques and processes, where the CA cts follow the approach adopted in Frye v. United States, req’ing that the method used to gather the evidence must be “GENERALLY ACCEPTED” by the scientific community (“Kelly” test).

Question 6

Competence as Witness

Answer 6

FRE: Everyone is competent to be a witness in fed ct (subject to oath).

CEC: In CA, a person is disqualified to be a witness if:

(1) he is incapable of expressing himself or
(2) incapable of understanding the duty of a witness to tell the truth.

Question 7

Relevance of Evidence

Answer 7

FRE: There need NOT be a DISPUTED fact in question for evidence to be deemed relevant.

CEC: In CA, relevant evidence MUST pertain to a DISPUTED fact.

Question 8

Judicial Notice

Answer 8

FRE: If requested, the CT MUST take JN of matters GENERALLY KNOWN in the jdx
—> The ct MAY take JN of such matters if not requested.

CEC: Whether requested or not, the ct MUST take JN of matters GENERALLY KNOWN in the jdx.

Question 9

Rule of Completeness

Answer 9

FRE: When one party introduces part of a WRITING or RECORDED STATEMENT, the adverse party may req introduction of any other part that in fairness should be considered at that time.

CEC: The CA rule is BROADER.
—> Includes CONVERSATIONS that were not recorded or in writing, as well as ACTS and conduct.

Question 10

CA Prop 8

Answer 10

FRE: No similar provision to CA’s Prop 8.

CEC: CA’s Prop 8 impacts the character of witnesses in criminal trials only.
—> It permits evidence of good character for credibility to be admissible before bad, and allows for specific instances and extrinsic evidence.

Question 11

Plea Negotiations

Answer 11

FRE: Limited to conversations w/ PROSECUTORS.

CEC: The CA rule is broader.
—> Covers conversations w/ PROSECUTORS and POs, as long as they are statements made in the course of bona fide plea negotiations.

Question 12

Offer to Pay Medical Expenses

Answer 12

FRE: Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question.

CEC: The California rule is broader.
—> Accompanying statements made along with an offer to pay medical expenses is also inadmissible.

Question 13

Character Evidence: Generally

Answer 13

General rule (followed by both FRE and CEC) is that 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: The Federal Rules have an exception, 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 con- duct in this case.
—> Character evidence is not admissible in civil cases, except for propensity evidence against a defendant in sexual assault or molestation cases.

CEC: In California, character evidence is not admissible in civil child abuse cases.

• –> It is generally inadmissible to prove conduct, but admissible to show motive, intent, modus operandi, identity, or common plan or scheme (Abbreviation to remember: MIMIC)
• –> Note: This applies under both the Federal Rules and California Evidence Code, but consent is also on the CEC list.
• –> Advance notice to the accused is not required in California.

Question 14

Character Evidence: Attacks on Victim’s Character

Answer 14

FRE: Where the court has admitted evidence of victim’s character offered by the accused, prosecution may offer evidence that the accused has the same character trait.

• –> Any character trait is fair game, as long as it is the same character trait.
• –> Under the Federal Rules, only opinion or reputation evidence can be used to attack a victim’s character.

CEC: Where the court has admitted evidence of the victim’s character for violence offered by the accused, prosecution may offer evidence that the accused has violent character (a narrower version of FRE; limits trait to violence).
—> In CA, opinion, reputation, or evidence of specific acts can be used to attack a victim’s character.

Question 15

Impeachment by Evidence of Sexual Behavior

Answer 15

FRE: The Federal Rules do not permit the use of a victim’s sexual habits or behavior to be used to impeach the victim.

CEC: CA permits the use of a complainant or P’s sexual conduct as evidence to attack the credibility of the victim as a witness in a criminal prosecution for sexual assault or in a civil lawsuit for sexual harassment, battery, or assault.
—> Evidence of sexual conduct is inadmissible to prove consent (see rape shield law below).

Question 16

Impeachment by Prior Conviction: Felonies

Answer 16

FRE: Felony convictions involving false statements are admissible with no balancing needed except for old convictions.

• –> Felony convictions used to impeach the D and not involving false statements may be admissible but the ct must balance unfair prejudice against probative value.
• –> For impeachment of a witness other than the accused, a felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially out- weighed by unfair prejudice).

CEC: Felony convictions involving moral turpitude are admissible but ct must balance unfair prejudice against probative value.

Question 17

Impeachment by Prior Conviction: Misdemeanors

Answer 17

FRE: Misdemeanor convictions involving false statements are admissible with no balancing needed except for old convictions.
—> Misdemeanor convictions not involving false statements are inadmissible.

CEC: Misdemeanor convictions involving moral turpitude are admissible in criminal cases but ct must balance unfair prejudice against probative value.
—> Misdemeanor convictions are inadmissible in civil cases.

Question 18

Other Sexual Offenses of the D

Answer 18

FRE: Under the Federal Rules, evidence of the D’s commission of another offense or offenses of the same type is unconditionally admissible.

CEC: In CA, admissibility is subject to a balancing test of probative value versus prejudice and potential harm.

• –> 15 days notice and disclosure to the D is req’d.
• –> Also applies to other domestic violence, elder/ dependent abuse and child abuse.

Question 19

Attorney-Client Privilege

Answer 19

FRE: Attorney may claim the privilege, and the privilege survives the death of the client.

CEC: So long as the holder of the privilege is in existence, the attorney-client privilege survives.

• –> When a client dies and a personal representative has been appointed on their behalf, the personal representative will become the holder of the privilege.
• –> Once the estate of the deceased is distributed and the executor of the estate is discharged, the privilege will end.

Question 20

Doctor-Patient Privilege

Answer 20

FRE: No common-law privilege.

CEC: Statements made by a patient to a doctor for the purpose of obtaining medical treatment or diagnosis for physical, mental, or emotional condition are privileged.

Question 21

Victim-Counselor Privilege

Answer 21

FRE: The fed CL victim-counselor privilege only extends to physicians and psychotherapists.

• –> The psychotherapist- patient privilege also includes licensed social workers.
• –> There is no fed domestic violence counselor privilege.

CEC: CA has created privileges for info relayed by victims of sexual assault, domestic violence, and human trafficking to counselors assigned to these cases.

Question 22

Newsman’s Refusal to Disclose News Source

Answer 22

FRE: No privilege similar to CA’s Newsman’s privilege is recognized under fed CL but states may enact their own news “shield” laws.

CEC: In CA, a publisher, editor, reporter, or other person connected with or employed by a periodical publication, press association or wire service may not be found in contempt for refusing to disclose the source of any info procured for publication.

Question 23

Privilege for Official Information

Answer 23

FRE: Under fed CL, the govt may refuse to disclose military or diplomatic info when disclosure would undermine national security.

CEC: In CA, a public entity has a privilege to refuse to disclose official info, and to prevent another from disclosing official info.

Question 24

Privilege to Protect the Identity of an Informer

Answer 24

FRE: Under fed CL, the U.S., or a state or subdivision thereof, has a privilege to refuse to disclose the identity of a person who has furnished info relating to, or assisting in, an investigation of a possible violation of a law to a PO or member of a legislative committee or its staff conducting an investigation.

CEC: CA recognizes a similar privilege.
—> A public entity has a privilege to refuse to disclose the identity of a person who has furnished info in confidence to a PO or a representative of an administrative agency charged with administration or enforcement of the law purporting to disclose a violation of the law.

Question 25

Spousal Privilege

Answer 25

FRE: Under the Federal Rules, the spousal privilege applies only in criminal cases.
—> The witness spouse is the holder of the privilege and can waive it if he or she wishes.

CEC: In CA, the spousal privilege applies in both civil and criminal cases.
—> The witness is privileged from even being called by an adverse party to testify if their spouse is a party to the case.

Question 26

Best Evidence Rule - Requirement of Original Document

Answer 26

FRE: The BER reqs the original doc or a duplicate and applies only where the contents of the writing, recording or photograph are at issue.
—> Handwritten copies are usually not admitted.

CEC: CA abrogated the “best evidence rule,” which previously req’d proof of the contents of a writing by the original or a duplicate.

• –> In CA today, the content of a writing, recording, or photograph may be proved by an otherwise admissible original but the content may also be proved by otherwise admissible secondary evidence.
• –> Handwritten copies are treated the same as other duplicates.

Question 27

Ancient Document Rule

Answer 27

FRE: If a doc is at least 20 years old, does not on its face present any irregularities, and was found in a place of natural custody, authenticity is established.

CEC: The rule in CA is the same as the Federal Rule except the doc must be at least 30 years old for authenticity to be est’d under the ancient document rule.

Question 28

Hearsay - Coconspirators

Answer 28

FRE: The Federal Rules require the proponent to prove the foundational facts by a preponderance of the evidence.
—> A fed judge can consider the coconspirator’s declaration in determining whether the prosecution has proved the conspiracy and the accused’s participation, although the judge may not rely on the coconspirator’s statement alone to find the preliminary facts.

CEC: In CA, a sufficiency standard applies, i.e., there must be admissible evidence sufficient to sustain a finding of the preliminary facts that:

1. the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; and
2. the statement was made prior to or during the time that the party was participating in that conspiracy.
   * **The proponent in CA may not offer the coconspirator’s hearsay declaration as evidence of the foundational requirements.
   - –> There must be independent proof of the existence of the conspiracy.

Question 29

Hearsay Exception - Prior Inconsistent Statements

Answer 29

FRE: The Federal Rules classify qualifying prior statements of witnesses as not constituting hearsay even if offered to prove the truth of the matter asserted.
—> The prior inconsistent statement must have been made under oath.

CEC: CA treats prior out-of-court statements by a witness as hearsay if offered to prove the truth of the matter asserted, but provides hearsay exceptions.
—> The prior statement need not have been made under oath to be admissible for the truth of the matter in CA.

Question 30

Hearsay Exception - Present Sense Impression

Answer 30

FRE: The Federal Rules create an exception for present sense impressions, which are statements “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
—> In contrast to CA’s focus on the declarant’s subjective intent regarding the act, the Federal Rule provides an exception for statements describing external phenomena perceived by the declarant.

CEC: The California Evidence Code recognizes a type of “contemporaneous statement” that differs from the present sense impression exception in the Federal Rules.

• –> The exception is for statements which are “offered to explain, qualify, or make understandable conduct of the declarant” and which were “made while the declarant was engaged in such conduct.”
• –> This exception is actually for verbal acts of legal significance, such as the declarant’s intent to create a gift or a trust.

CEC: CA also recognizes a hearsay exception for “spontaneous statements” made while the declarant was under the stress of excitement caused by perceiving an act, condition or event.

• –> The utterance must purport “to narrate, describe, or explain” the act, condition, or event perceived by the declarant, making this rule an amalgam of the present sense impression and excited utterance exception under the Federal Rules.
• –> The CA provision does not req that the event was an “exciting” one.

Question 31

Hearsay Exception - Declaration Against Interest

Answer 31

FRE: Under the Federal Rules, a statement by an unavailable declarant is admissible if, at time the statement was made, it was against the financial or criminal interest of the declarant (against propriety or pecuniary interest, or expose the declarant to civil or criminal liability).
—> Where a D seeks to introduce such a statement to exculpate himself or inculpate others, the statement must be corroborated to be admissible as declaration against interest.

CEC: Under CA Rules, 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 bc it risked making the declarant an object of “hatred, ridicule, or social dis- grace in the community.”
—> The CA rule is broader than the Federal Rule.

Question 32

Hearsay Exception - Learned Treatises

Answer 32

FRE: Either party can introduce a learned treatise as evidence, irrespective of whether it is being used to rebut the opposing party.
—> For the learned treatise to be introduced, there must be an expert witness on the stand.

CEC: The exception in CA is limited to statements in historical works, books of science or art, and published maps or charts “made by persons who are indifferent between the parties” when offered “to prove facts of general notoriety and interest.”

Question 33

Hearsay Exception - Dying Declaration

Answer 33

FRE: The Federal Rules create a hearsay exception for dying declarations in civil cases, but in criminal cases dying declarations are only admissible in homicide prosecutions.

CEC: Under the California Evidence Code, such declarations can be offered in any criminal proceeding, as well as civil proceedings.
—> The declarant is not req’d to be unavailable, but in all reported cases declarant is dead.

Question 34

Hearsay Exception - OJ Exception

Answer 34

FRE: The Federal Rules do not include a similar hearsay exception to California’s OJ Exception.

CEC: The CA Evidence Code creates a hearsay exception for statements describing or explaining infliction or threat of physical abuse if:

1. the declarant is unavailable;
2. the statements were made at or near time of the injury or threat;
3. in a writing, recorded or made to police or medical professionals; and
4. under trustworthy circumstances.

Question 35

Hearsay Exception - Statement Made for Medical Diagnosis or Treatment

Answer 35

FRE: Under the Federal Rules, 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.
—> The declarant does not have to be unavailable.

CEC: Under the CA Rules, a statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if:

(1) the declarant was 12 years old or younger when the statement was made and
(2) the statement was describing an act of child abuse or neglect.
- –> The declarant does not have to be unavailable.
- –> This exception is narrower than the Federal Rule.

CEC: In CA, a declarant’s statement of past physical or mental condition is admissible to prove the condition, if it is at issue in the case.

• –> The statement will be admitted if it includes a statement of intention.
• –> There is no req’ment that statement be made for medical diagnosis or treatment and the declarant must be unavailable.
• –> There is no such Federal Rule.

Question 36

Non-Hearsay: Vicarious Party Admission

Answer 36

FRE: Under the Federal Rules, a statement by an employee of the party is deemed a party admission of the employer if (1) the statement concerned a matter within the scope of employment and (2) was made during the employment relationship.

CEC: Under the CA rules, only employee statements that get admitted under the vicarious party admission theory are statements by employees whose negligent conduct makes the employer vicariously liable under principle of respondeat superior.
—> The employer is responsible for the employee’s words only if he is also responsible for the employee’s conduct.