CA Evidence Flashcards
Apply Federal or California Evidence Law? (Essay)
Federal Court in California in a civil action arising under Diversity Jdx regarding (1) Privileges; (2) Witness Competency; (3) Effect of presumptions.
California Evidence law!
Right to Truth-in-Evidence Amendment to CA Constitution (Proposition 8)
Criminal case in CA, all relevant evidence is admissible!
7 Exceptions to Prop. 8
- Exclusionary rules under U.S. Constitution (e.g. Confrontation Clause)
- Hearsay
- Privilege
- Limits on character evidence to prove defendant’s or victim’s conduct
- Evidence barred by CA’s rape-shield statute
- Secondary evidence rule (CA’s Best Evidence Rule)
- CEC 352 (CA’s 403)
“HELPRS 352”
3-Step Approach on CEC Essays
- Raise all objections under CEC
- For each objection, mention if Prop. 8 - in a criminal case - overrules objection (Relevant? Exception?)
- If evidence admissible under Prop. 8, balance under CEC 352 (probative value)
What does the fact of consequence need to be?
Relevance
Evidence is relevant if it has any tendancy to make existence of a fact of consequence IN DISPUTE to the determination of the action more or less probable than it would be without the evidence.
What’s the rule number in CA?
Court’s Discretion to Exclude Relevant Evidence
CA’s version is called Rule 352
Public Policy Exclusions
Subsequent Remedial Measures
- FRE: Evidence of safety measures/repairs after an accident is INADMISSIBLE to prove (1) Negligence or culpable conduct (2) Defect in a product or its design in a product liability action based on strict liability
- CEC: Evidence of safety measures/repairs after an accident is INADMISSIBLE to prove (1) Negligence or culpable conduct. CEC does NOT apply to strict liability cases
Ex) Product liability action against manufacturer. Plaintiff alleges toy’s sharp corners caused injury. To prove defective design, Plaintiff offers evidence that Defendant redesigned toy to remove sharp corners. Admissible in CA Court; Inadmissible in Federal Court.
Public Policy Exclusions
Civil Settlements and Settlement Negotiations
- FRE & CEC: Evidence of settlements, offers to settle, and statements made during settlement negotiations is INADMISSIBLE to prove liability or fault.
- CEC has stricter confidentiality rules that exclude any statements or writings made for purpose of mediation
Ex) “If you sign a release, I will pay your hospital bill, I shouldn’t have dropped that banana peel on stairs” Inadmissible FRE and CEC
Public Policy Exclusions
Payments of and Offers to Pay Medical Expenses
- FRE & CEC: Evidence of payments or offers to pay medical or similar expenses is inadmissble when offered to prove liability for injuries in question.
- FRE: Admissions of fact accompanying such payments and offers do not fall witihin exclusion; ADMISSIBLE. Excluded only when made as a part of a settlement offer.
- CEC: Admissions of fact made in conjunction with payments or offers to pay medical expenses are INADMISSIBLE
Ex) “I’ll pay your hospital bill.” Inadmissible FRE and CEC.
Ex) “I shouldn’t have dropped that banana peel on stairs” Admissible FRE; Inadmissible CEC
Public Policy Exclusions
Plea Discussions
- **FRE & CEC **: Offers to plead guilty, withdrawn guilty pleas, pleas of nolo contendre, and statements of fact made during plea discussions are INADMISSIBLE
- Even though CEC makes it inadmissible, does Prop. 8 change result? Raise issue on essay!
CA only - Public Policy Exclusions
Expressions of Sympathy in Civil Cases
- Expressions of sympathy relating to accident victim’s pain, suffering, or death are INADMISSIBLE in civil cases
- Statements of fault are ADMISSIBLE
Ex) “I am so sorry you are badly hurt. I should not have run the red light”
Entire part: Admissible FRE
First part Inadmissible CEC
Second part Admissible CEC
CA only - Public Policy Exclusions
Evidence of Immigration Status in Personal Injury and Wrongful Death
- Evidence of person’s immigration status is INADMISSIBLE or discoverable in civil actions for personal injury and wrongful death cases
CA only - Public Policy Exclusions
Hospital Quality Records in Civil Cases
INADMISSIBLE in civil cases:
- Records of hospital morbidity/mortality studies (studies that keep track of how many patients suffered complications/died)
- Cetain proceedings and records of organized hospital committees and peer review bodies
CA only - Public Policy Exclusions
Victim’s or Witness’s Act of Prostitution
- When a person was a victim of a certain crime or witnessed such crime, evidence that the person had engaged in an act or prostitution at or around the same time is INADMISSIBLE against them in a separate criminal prosecution for prostitution
- Qualifying crimes: Serious felony, Assault, Domestic violence, Extortion, Human trafficking, Sexual battery, Stalking
Difference in Exception for Sexual Assault / Child Molestation
Character Evidence in Civil Cases
- FRE & CEC: Character evidence is INADMISSIBLE to prove conduct in conformity (propensity) in civil cases
- FRE: exception where the civil claim is based on sexual assault or child molestation, Defendant’s prior acts of sexual assault or child molestation are ADMISSIBLE to prove defendant’s conduct in such a case
- CEC does NOT recognize the exception to the general rule that character is inadmissible to prove conduct in civil cases
Character Evidence in Criminal Cases
Defendant’s Conduct in Criminal Case
- FRE & CEC: Defendant is permitted to open the door by introducing evidence of their own good character for a pertinent trait in form of (1) Reputation or (2) Opinion testimony.
- Prosecution CANNOT initiate the use of character evidence to prove Defendant’s conduct.
- Prosecution can only REBUT after Defendant opens the door🚪 (Prop. 8 does not change this rule in CA)
Defendant’s Conduct in Criminal Case
4 Exceptions: When Prosecution Can Initiate Bad Character & Rebut to Prove their Conduct
Where defendant has NOT introduced evidence of their own good character, prosecution can still introduce evidence of the defendant’s bad character to prove their conduct in:
(1) FRE & CEC: In prosecution for sexual assault or child molestation, prosecution may offer evidence that defendant committed other acts of sexual assault or child molesatation (CEC does NOT recognize this exception in civil cases)
(2) CEC: In prosecution for a crime of Domestic violence or Elder abuse, prosecution may offer evidence that the Defendant committed other acts of domestic violence or elder abuse
(3) FRE: If Defendant has introduced evidence of victim’s bad character, prosecution may rebut by offering evidence that the defendant has bad character of same trait
(4) CEC: If Defendant has introduced evidence of victim’s character for violence, prosecution may rebut by offering that defendant has a violent character
FRE 🆚 CEC
May prosecution offer evidence that Defendant has a character for dishonesty?
Prosecution for theft of 💍 Victim claims Defendant stole her ring. Defendant claims ownership of ring and claims it was the victim who stole it and Defendant took it back. Defendant offers evidence that victim has a character for dishonesty.
FRE: Yes
CEC: No
Cross-Examination of Defendant’s Character Witness
- FRE & CEC: Once Defendant introduces evidence of their own good character in form of reputation and opinion testimony, Prosecution can cross-examine the Defendant’s character witness about Defendant’s specific instances of conduct.
- These specific instances of conduct are NOT permitted to prove Defendant’s character, but are permitted to attack character witness’s direct examination testimony.
Victim’s Character in Criminal Case
- FRE & CEC: Prosecution cannot be first to offer evidence of victim’s character to prove victim’s conduct. Defendant can introduce evidence of victim’s character for a pertinent trait to prove victim’s conduct.
- FRE ONLY (NOT CEC) in Homicide: If Defendant offers any sort of evidence that victim attacked first, door is open and prosecution can offer reputation or opinion evidence that victim had a peaceful character CA DOES NOT HAVE EQUIVALENT RULE
Victim’s Character in Criminal Case
Admissibility of Specific Instances of Victim’s Conduct
- Defendant can initiate evidence of victim’s character to prove victim’s conduct, opening door for rebuttal from prosecuton.
- FRE has same rule with evidence of Defendant’s character; Defendant can introduce evidence of victim’s character in form of reputation or opinion. If door opened, prosecution can introduce reputation and opinion evidence of victim’s conduct. Prosecution can cross-examine Defendant’s character witness about specific instances of victim’s conduct to attack character of witness’s direct examination testimony, not to prove victim’s character.
- CEC : Specific acts are ADMISSIBLE to prove victim’s character on both direct and cross, i.e., Defendant can offer evidence of victim’s character in reputation, opinion, and specific instances of conduct. Once door has been opeend, prosecution can rebut evidence in reputation, opinon, and specific instances of conduct.
Sexual Assault Victim’s Past Behavior
- FRE: In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior/disposition of victim is generally inadmissible, subject to certain exceptions.
- CEC: Only in criminal sexual assault cases. Excludes evidence of victim’s sexual conduct to prove consent, UNLESS conduct was with Defendant. Excludes victim’s manner of dress.
If prosecution introduces evidence of victim’s prior sexual conduct, Defendant is permitted to cross-exam
Defendant’s Similar Misconduct in Certain Cases
- FRE: evidence of defendant’s other acts of sexual assault or child molestation is admissible in any criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. Such evidence is relevant for any purpose, including defendant’s propsensity to commit sex crimes.
- CEC admits such evidence in criminal cases but NOT in civil cases. CA extends the rule to other types f crimes. In prosecutions for DV or Elder abuse, the defendant’s other similar acts are admissible.
Testimonial Evidence
Competency of Witness: Extra CA Requirement?
- FRE & CEC require witness to testify based on personal knowledge and take an oath/affirmation to tell truth
- CEC adds formal requirement that witness must understand legal duty to tell truth
Testimonial Evience
CA Safeguards for Hypnotized Testimony (3)
- A witness who has undrgone hypnosis to restore memory is only competent to testify abotu matters they recalled and related to others prior to hypnosis.
- In Criminal Cases, CEC has additional requirements:
(1) Substance of prehypnotic memory must have been preserved in writing/recording prior to hypnosis
(2) Hypnosis must have been video recorded
(3) Hypnosis must have been done outside presence of law enforcement, prosecution, defense
Does CA have a Dead Man Act?
NO!
Difference to whether adverse party can compel production of writing?
Refreshing Witness’s Recollection: Safeguards Against Abuse
FRE: if witness refreshed memory while on stand, adverse party is entitled to have writing produced at trial and to use and introduce relevant portions. But if witness refreshed memory before trial, it is within court’s discretion to require production.
CEC: Immaterial whether refreshing done before or during trial. If oppponent asks for writing to be produced, proponent MUST produce it (unless they dont have it and cannot obtain by subpoena or other means)
Difference in Determining Reliability?
Opinion Testimony on Expert Witnesses
FRE: Daubert Standard: Court can consider various factors when determining reliability of scientific and non-scientific opinions (whether expert’s theory/methodology tested? subject to peer review/publication? Potential error rate? Existence and maintanence of standards controlling operation? Generally accepted in relevant field?)
CEC: Kelly-Frye general accpetance standard: Reliability of SCIENTIFIC opinions is determined by a single factor: the opinion must be based on principles that are generally accepted by experts in the field (Not changed by Prop. 8). Does not apply to non-scientific opinions and medical opinions, the reliability of which is based on facts and circumstances of the case
Learned Treatise Hearsay Exception
FRE: Once established as an accepted authority in field, a learned treatise that is relied upon by an expert or called to an expert’s attention on cross-examination is admissible to prove any facts contained in the treatise.
CEC: a learned treatise is admissible to show facts of general notoriety or interest found in published maps/charts/book of history/science, art. This hearsay exception is very narroow and almost never applicable. Thus, a learned treatise is usually admissible only on cross-examination of an expert witness.
Exclusion & Sequestration Of Witnesses
FRE: if a party makes a motion to sequester a witness, judge MUST grant the motion, but must not exclude witnesses in exempted categories
CEC: Judge has DISCRETION to grant/deny a pary’s motion to sequester, but must not exclude witnesses in exempted categories.
Sequester means to isolate.
Accrediting or Bolstering
FRE: Under federal law, w/ certain exceptions, a party is not permitted to bolster the testimony of their witness until the witness has been impeached
CEC: The CA rule is the same in CIVIL cases. But in CRIMINAL cases, Propr 8 allows both the prosecutor and the defendant to bolster a witness’s credibility before it has been attacked.
Prop 8 makes all relevant evidence admissible in a criminal case.
Impeachment w/ Prior Inconsistent Statement
FRE: A prior inconsistent statement is not hearsay if offered only to impeach. However, there is a hearsay problem when the statement is offered for the truth of the facts asserted. FRE recognizes hearsay exlcusion for certain prior inconsistent statement was given under oath at a tiral or deposition, it is not hearsay.
CEC: In CA there are NO exclusions as to the definition of hearsay. In CA there are ONLY exceptions. Prior inconsistent staements of a testifying witness are categorized as a hearsay exception, not an exclusion. The exception extends to ALL prior inconsistent statements, even if they were NOT made under oath.
Impeachement with Criminal Convictions - (2) Main Considerations
(1) What types of convictions are admissible for impeachment purposes?
(2) Does the court have discretion to exclude an otherwise admissible conviction?
Impeachement with Criminal Convictions
Prior Felony Convictions
FRE: Convictions for felonies involving dishonesty or false statement are admissible. Convictions for felonies NOT involving dishonesty or false statement are also admissible, but the court has discretion to exclude them. The balancing test depends on who the witness is; for most witnesses, the court uses the 403 balancing test (evidence is admissible unless unfair prejudice substantially outweighs probative value), but a different balancing test is used in a criminal case where the witness is the accused - balancing test is skewed against prosecutor. Prosecutor has the burden of showing probative value outweighs unfair prejudice.
CEC: In CA all felonies involving moral turpitude are admissible, but the court has discretion to exclude them nder CEC 352. Felonies NOT involiving moral turpitude are INDADMISSIBLE. (Prop 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment)
Felony Convictions in CA
Moral Turpitude
Referes to crimes of lying, violence (but not simple assault), theft, extreme recklessness, or sexual miscoduct. Crimes consisting of merely negligent or unintetional acts are not crimes of moral turpitude.
Felony Convictions in CA
Form of Impeachment
CA Supreme Court has ruled on the form of impeachment w/ prior felony convictions. In civil cases, the witness may only be impeached w/ the fact that they have been convicted of the felony. But in criminal cases, Prop 8 makes evidence of the circumstances underlying the crime admissible to impeach the witness if the proponent demonstrates that the evidence has any tendency to disprove credibility.
