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.
Prior Misdemeanor Convictions
FRE: All convictions for misdemeanors involving dishonesty or false statement are admissible. The court has no discretion to exclude these convictions for crimes of dishonesty or false statement. If the misdemeanor is not a crime of lying, it’s inadmissible to impeach.
CEC: In CA, the law depends whether it is in a civil or criminal case. The CEC provides that misdemeanor convictions are inadmissible. So, misdeameanor convictions are inadmissible in civil cases. However, because of Prop 8, convictions for misdemeanors involving moral turpitude can be admitted in criminal cases, subject to the court’s balancing of probative value versus unfair prejudice under CEC 352. Prop 8 only applies to CRIMINAL cases.
CA Analysis for Impeaching Witness w/ Misdemeanor
(1) Trying to impeach a witness w/ a misdemeanor;
(2) Evidence Code say you cannot do that;
(3) BUT, this is a criminal case;
(4) Prop 8 applies - all relevant evidence is admissible and any conviction, felony or misdemeanor involving an act of moral turpitude is relevant to impeach a witness;
(5) Subject to the court’s balancing of probative value (especially if Defendant is testifying as a witness)
Older Convictions
FRE: If a conviction qualifies for impeachment but more than 10 years have passed since hte date of conviciton or release from prison, it’s INADMISSIBLE unless the court determines that the convcition’s probative value substantially outweighs its prejudicial effect.
CEC: CA does not have a specific rule for old convictions. However, CA courts always have discretion to exclude a conviction offered for impeachment under CEC 352, and this permits consideration of any factor bearing on probative value, including the age of the conviction.
Summary of CA Rules for Impeachment w/ Prior Convictions
(1) To be admissible, the conviction must always be for a crime involving moral turpitude;
(2) Misdemeanor convictions are admissible in criminal cases only; and
(3) The Court always has discretion to exclude a aqualifying conviction CEC 352 (burden on the objecting party)
Impeachment w/ Bad Acts
FRE: A witness’s bad acts involving untruthfulness can be admissible even if those facts did not lead to a conviction. The impeachment must be done on cross-examination only, extrinsic evidence of the bad act is admissible, and the evidence is subject to Rule 403 balancing. (Only type of misconduct evidence that can be used to impeach a witness is evidence of LIES - not theft, not other bad stuff)
CEC: In CA, impeachment w/ bad acts that did not lead to a conviction is not permitted. However, if it’s a criminal case, Prop 8 makes acts of moral turpitude admissible for impeachment. When admissible, both cross-examination and extrinsic evidence are permitted, subject to balancing under CEC 352.
* In CA civil cases, impeachment w/ bad acts is not permitted.
Rehabilitation w/ Prior Consistent Statement
FRE: A party can rehabilitate an impeached witness by introducing the witness’s prior consisten statement if:
(1) the testimony of the witness was attacked by a charge that the witness is lying or exaggerating because of some improper motive, if the prior consistent statement was made before the motive to lie arose; or
(2) the witness was impeached on some other ground, and the prior consistent statement tends to rehabilitate the witness.
- Prior consistent statement is admissible as an “exclusion”, so it’s NOT hearsay.
CEC: In CA, the same w/ respect to category (1) in FRE, but more specific w/ respect to category (2). A prior consistent statement is admissible if the witness was impeached w/ a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement.
- Prior consistent statement is admissible then it is hearsay but within an “exception”. In CA, no such thing as hearsay exclusions.
Hearsay
In CA, hearsay law is exempt from coverage of Prop. 8. This means that, even in a criminal case, the usual rules of evidence apply.
- There are no hearsay exclusions in CA - only exceptions.
Hearsay Exclusion (FRE) / Exception (CA)
Opposing Party Statement
Statement of a party, or by someone whose statement is attributable to the party, is admissible when offered against that party.
FRE: Under Federal Rules, an opposing party’s statement is excluded from the definition of hearsay; it is NOT hearsay under Federal.
CEC: In CA, an opposing party’s statement is called admissions. Admissions are considered hearsay in CA, but are admissible under a hearsay exception.
Hearsay Exclusion (FRE) / Exception (CA)
Vicarious Party Admissions - Agents/Employees
Statement of a person authorized by a party to speak on its behalf is admissible against the party.
FRE: Under Federal Rules, a statement of a party’s agent or employee is admissible as an opposing party’s statement if the statement: (1) concerned any matter within the scope of the agency/employment, and (2) was made during the existence of the agency or employment relationship.
CEC: In CA, there is no equivalent provision. However, in civil cases a statement by a party’s employee is considered an admission by the employer where the negligent conduct of the employee is the basis for the employer’s liability under respondeat superior.
Employer is responsible for the employee’s words only if they are also responsible in tort law because of that employee’s conduct.
CA ONLY - Additional Vicarious Admissions
Wrongful Death Action
Statements by the deceased are admissible against the Plaintiff.
CA ONLY - Additional Vicarious Admissions
Parent’s Action for Their Minor’s Injury
Statements by the child are admissible against the parent.
CA ONLY - Additional Vicarious Admissions
Civil Case - Right or Title to Property is at Issue
Statements made by the predecessor in interest during the time they were supposedly the holder of the right or title are admissible against the party.
CA ONLY - Additional Vicarious Admissions
Action Against a Decedent’s Estate
Statement made by the decedent is admissible against the estate, provided the statement:
(1) Concerned a matter within the decedent’s personal knowledge;
(2) was made after the decedent had recently perceived the matter; and
(3) was made while the deceden’t recollection was clear.
Prior Statements of Testifying Witness
Prior Statement of Identification
FRE: A statement of identification of a person as someone the witness perceived earlier is not hearsay.
CEC: A witness’s statements of identification are categorized as an exception to the hearsay rule (still considered hearsay). The CA exception imposes additional requirements:
(1) Identification must have been of a person who participated in a crime or other occurrence;
(2) Witness must have made the identification while their memory was fresh; and
(3) Witness must confirm in court that they made the identification and that it truly reflected their opinion at the time.
Prior Statements of Testifying Witness
Prior Inconsistent Statement
Prior inconsistent statements, both in Federal and CA are NOT hearsay when offered only for impeachment purpoes. However, when they are offered to prove the facts asserted in the statement, there is a hearsay problem.
FRE: A witness’s prior inconsistent statement is excluded from the definition of hearsay if it was made under oath at a prior proceeding. Otherwise, a witness’s prior inconsistent statement is hearsay and inadmissible to prove the fact asserted.
CEC: A witness’s prior inconsistent statement falls under an exception. This exception extends to ALL prior inconsistent statements, regardless of whether they were made under oath.
Prior Statements of Testifying Witness
Prior Consistent Statement
Under federal and CA law, a prior consistent statement that is admissible to rehabilitate a witness is also admissible as substantive evidence of the truth of its contents. (Statements made before the alleged bribe/inconsistent statement made by the witness - timing is key in both FRE and CEC!)
FRE: A witness’s prior consistent statement is not hearsay - within an exclusion.
CEC: A witness’s prior consistent statement is categorized as a hearsay exception.
Hearsay Exceptions Requiring Unavailability
Grounds for Unavailability
Federal and CA law recognize most of the same grounds for unavailability:
(1) Death or physical or mental infirmity;
(2) Privilege;
(3) Refusal to testify despire a court order; and
(4) Absence and inability of the proponent to procure attendance by process or other reasonable means.
FRE: A declarant also is unavailable if their memory fails on the subject matter of their statement.
CEC: In CA, lack of memory on topic does NOT qualify, unless witness is shown to be suffering total memory loss. CA courts have also held that fear of testifying can be considered a mental infirmity that prevents the declarant from testifying.
Hearsay Exceptions Requiring Unavailability
Statement Against Interest
FRE: A statement by an unavailable declarant is admissible if, at the time it was made, it was against the declarant’s pecuniary (money), proprietary (property), or penal (criminal) interest. In a criminal case, if the statement woudl have subjected the declarant to criminal liability, the proponent must offer corroborating circumstances showing that the declarant’s statement is trustworth.
CEC: In CA, the exception is broader in (2) respects: (1) it does not include the corroboration requirement for statements subjecting the declarant to criminal liability; (2) It also applies to statements agaisnt the declarant’s social interest that would risk makign the declarant and object of “hatred, ridicule, or social disgrage in the community”.
Hearsay Exceptions Requiring Unavailability
Former Testimony
Under federal and CA law, testimony given under oath at trial, hearing, or deposition by now-unavailable declarant is admissbile if the party against whom the testimony is now being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-examination, or redirect examination.
Opportunity and similar motive requirement means that the party against whom the testimony is now being offered must have been a party in the former action.
HOWEVER, where this party was NOT a party in the former action, such statements may still be admitted under the former testimony exception in CIVIL cases, but federal and CA law differ on what is required:
FRE: Only in civil cases, if the party against whom the testimony is being offered was not a party in the former action, the statement is still admissible if the party’s predecessor in interest (person in a privity relationship) was a party in the former action.
CEC: Only in civil cases, can admit former testimony in today’s case against a party who was not present in the first case, so long as there was a party in the first case who had a similar interest to the interest of the party in today’s civil action.
CA Only - Witness Unavailable
Unavailable Declarant’s Former Testimony
Additional CA Exception
Unavailable declarant’s former testimony also admissible if being offered against a party who offered it in evidence on their own behalf at the prior proceeding, or against that person’s successor in interest. The “similar motive” requirement does not apply in this situation.
CA Only - Witness Unavailable
Deposition Testimony in Same Civil Case
Under CA civil procedure rules, apply when the former testimony is from a deposition in the same civil case. The deposition testimony is admissible for all purposes if the deponent:
(1) Is unavailable to testify at trial; or
(2) Lives more than 150 miles from the courthouse.
Hearsay Exceptions Requiring Unavailability
Dying Declaration
FRE: Under FRE, in a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if:
(1) Declarant believed their death was imminent (they need not have died); and
(2) Statement concerned the cause or circumstances of what the declarant believed to be their impending death.
CEC: Under CA, exception applies in:
(1) All criminal and civil cases; and
(2) Declarant must have died as a result of what happened.
Hearsay Exceptions Requiring Unavailability
Statements Offered Agaisnt Party Procuring Declarant’s Unavailability
Under FRE and CEC, the statement of an unavailable declarant is admissible in any type of case when offered agaisnt a party who has engaged or acquiesced in wrongdoing that intentionally caused the declarant to be unavailable to testify.
CEC: CA recognizes this exception, and specifically provides that the judge has discretion to exclude the statement if it appears untrustworthy.
CA Only - Witness Unavailable
Statements of Kidnapped or Murdered Declarant
Additional CA Exception
Statement of kidnapped or murdered declarant is admissible if:
(1) Prosecution for serious felony;
(2) Unavailability caused or aided by defendant;
(3) For purpose of prevent defendant’s arrest or prosecution (rather than preventing their testimony at trial).
NOTE: For this exception to apply:
(1) Statement must have been memorialized by law enforcement in a tape recording or in a writing signed by the declarant;
(2) Statement must be corroborated by other evidence that implicates the defendant in the charged crime.
CA Only - Witness Unavailable
Infliction or Threat of Physical Injury
Additional CA Exception
Statements describing the infliction or threat of physical injury.
CA Only - Witness Unavailable
Past Physcial or Emotional Condition
Additional CA Exception
Statements of past physical or emotional condition or state of mind, when at issue in the case.
Hearsay Exceptions Not Requiring Unavailability
Present Sense Impressions
FRE: Under FRE, a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition, is admissible as a present sense impression.
CEC: Under CA, admissible only where statement explains declarant’s own conduct and made while the declarant was engaged in the conduct.
CA Only - Hearsay Exceptions Requiring Unavailability
Statement Describing Infliction or Threat of Physical Abuse
Additional CA Exception
In CA, statements made by an unavailable declarant that describes, narrates, or explains the infliction or threat of physcial injury on the declarant is admissible if the statement:
(1) Was made at or near time of the infliction or threat;
(2) Was neither (a) In writing, (b) recorded, or (c) made to a law enforcement official or medical personnel; and
(3) Was made under circumstances that indicate trustworthiness.
Note: This hearsay exception requires the declarant to be unavailable, watch out for confrontation issues. Confrontation Clause applies to testimonial hearsay statements, some statements to the police are testimonial in nature.
Hearsay Exceptions Not Requiring Unavailability
Excited Utterance (FRE) / Spontaneous Statement (CEC)
Under FRE and CA, a statement relating to a startling event, made while the declarant was under the stress of the excitement from the event, is admissible.
FRE: In FRE, the statement is called “excited uttereances”.
CEC: Under CA, the statement is called “spontaneous statements”.
Hearsay Exceptions Not Requiring Unavailability
Statements of Present State of Mind or Condition
Under FRE and CA, a statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible. However, a statement of memory or belief is not admissible to prove the fact remembered or believed.
CEC: Under CA, the trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness.
Hearsay Exceptions Not Requiring Unavailability
Statements for Medical Diagnosis or Treatment
FRE: A statement that describes a person’s medical history, part or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for and was reasonably pertinent to medical diagnosis treatment.
CEC: (CA is much narrower) Hearsay exception only applies where: (1) the declarant is a minor at the time of the proceedings and was under age 12 at the time of their statement; and (2) their statement was made for the purpose of medical diagnosis or treatment and described an act or attempted act of child abuse or neglect.
CA Only - Hearsay Exceptions Requiring Unavailability
Past Condition or State of Mind When at Issue in Case
Additional CA Exception
In CA, a statement of an unavailable declarant’s past physical condition, emotional condition, or state of mind (including their motive, intent, or plan) is admissible to prove that condition if it is an issue in the case.
- There is no requirement that the statement be made for medical purposes. The trial judge has specific discretion to exclude statements that are made under circumstantces that indicate a lack of trustworthiness.
NOTE: Statements that do not qualify under “present state of mind” or “statements for medical diagnosis” exception in CA might be admissible under this exception - but, the declarant must be UNAVAILABLE.
Hearsay Exceptions Not Requiring Unavailability
Business Records
FRE: Under FRE, a writing or record made as a memorandum of any act, event, condition, opinion or diagnosis is admissible in evidence as proof of that occurrence if the element of the exception are met (made in the regular course of business; made at or near the time of the occurrence)
CEC: Under CA, business records exception does NOT refer to opinions or diagnoses, but courts still will admit simple opinions and simple diagnoses.
Hearsay Exceptions Not Requiring Unavailability
Required Foundaiton of Business Records
FRE: Under FRE, a business record can be authenticated by a records custodian or other qualified witness confirming that the record meets the elements of the business records exception. This can be accomplished by either:
(1) Live testimony; or (2) Written Certification.
CEC: Under CA, a custodian or other qualified witness must testify as to the identity of the business record and its creation; a written certification is not sufficient.
Hearsay Exceptions Not Requiring Unavailability
Public Records Exception
FRE: Under FRE, the record of a public office is admissible if it is within any of the following (3) categories:
(1) Record describes the activities of the office;
(2) Record describes matters observed pursuant to a duty imposed by law (not including police observations in a criminal case); and
(3) Record contains factual finding resulting from an investigation that was authorized by law.
* In a criminal case, the prosecution cannot offer a record falling within category (3). Additionally, the record msut have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
CEC: Under CA, a record of an act, condition, or event made by a public employee is admissible if:
(1) Making the record was within the scope of the public employee’s duties;
(2) Record was made at or near the tiem of the matters described; and
(3) Source of information and the time of preparation indicate trustworthiness.
NOTE: There’s no singling out of police records - BUT - may be subject to the Confrontation Clause (testimonial evidence can include written evidence prepared by representatives of law enforcement).
Hearsay Exceptions Not Requiring Unavailability
Felony Judgment
FRE: Under FRE, a felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment. However, when offered by the prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible.
CEC: Under CA, exception for convictions applies only in civil cases. Prop. 8 doesn’t change this hearsay law. However, a certified copy of a judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.
Hearsay Exceptions Not Requiring Unavailability
Civil Judgments
FRE: Under FRE, prior civil judgments are generally inadmissible, with certain statutory exceptions. Example - a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.
CEC: Under CA, there are (2) exceptions for civil judgments:
* A party may offer a final judgment against themselves when they sue another for indemnification, or to enforce a warranty, or to recover for breach of warranty;
* Where a third party’s liability or obligation is at issue in a civil case a final judgment aganst that third party is admissible. (If Defendant in the case had assumed a 3d party’s liabilities, a judgment against that 3d party would be admissible agaisnt that defendant).
CA Only
Stements by Child Abuse Victim in Criminal Case
Additional CA Exception
Statements of child describing acts of child abuse or neglect are admissible under CA’s “medical diagnosis or treatment” exception. CA recognizes a separate exception that admits such statements even where not made for medical diagnosis or treatment, but the requirements are a bit more stringent in which this exception onl applies to:
(1) Criminal cases;
(2) Court must find that there are sufficient indicia of reliability; and
(3) Either (a) the child must testify at trial; or (b) if the child is unavailable, there must be evidence to corroborate the child’s statement.
NOTE: Look out for Confrontation Clause issues where the child is unavailable and their statement was testimonial in nature.
CA Only
CA Does NOT Have a “Catch All” Exception 🥅
FRE: Under FRE, there’s a catch-all exception for particularly trustworthy and necessary hearsay statement.
CEC: Under CA, there’s no catch-all exception, but judges can create new hearsay exceptions by decisional law!! 👩🏻⚖️
Authentication
Ancient Documents
A document can be authenticated by evidence that is sufficiently old, is in a condition that creates no suspicion as to authenticity, and was found in a place where such a writing would be kept.
FRE: A document qualfies as “ancient” if it is at least 20-years old.
* FRE hearsay exception for related documents applies to documents prepared BEFORE 1998.
CEC: A document qualifies as “ancient” if it is more than 30 years old.
* CA hearsay exception is the same as for authentication - document must be more than 30 years old.
Authentication
Self-Authenticating Writings
Authentication is unneccessary for certain writings (certified public records, notarized documents, newspapers).
FRE: Trade inscriptions and certified business records are self-authenticating documents.
CEC: Trade inscriptions and certified business records are NOT self-authenticating documents.
Authentication
Best Evidence Rule (FRE) / Secondary Evidence Rule (CEC)
When a party seeks to prove the contents of a writing, recordings, or photographs, the best evidence rule requires the party to produce the original (subject to many exceptions)
FRE: Under FRE, best evidence rule applies, a “duplicate” is usually admissible to the same extent as the original (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Secondary evidence of the contents of the writing, such as handwritten or otherwise reconstructed copies, or oral testimony, is not admissible unless a satisfactory excuse is given for the non-production of the original.
CEC: Under CA, the “secondary evidence rule” - duplicates and any written secondary evidence is admissible (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the orginal); and oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
- Duplicates and any written secondary evidence of the contents of the original - such as reconstructed or handwritten copies - are all usually admissible.
NOTE: This rule is exempt from Prop. 8 in CA, meaning, even in a criminal case, the secondary evidence rule applies.
Presumption?
Confidentiality
CEC: Communications between persons in privileged relationship presumed confidential
FRE: Federal courts do not recognize a presumption of confidentiality for all privileges, though it has been held that communications made between spouses for purpose of confidential marital communications are presumed to be privileged
Attorney-Client Privilege
FRE & CEC Attorney-client privilege applies to confidential communications between the attorney and client (or representatives of either) made during professional legal consultation unless waived or exception applies
Attorney-Client Privilege
Duration of Privilege
- FRE: survives death of client
- CEC: ends once estate of deceased client is distributed and executor of estate is discharged
Attorney-Client Privilege
Corporate Clients
- FRE: privilege applies to communicatiosn from a corporation’s employee/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporaton.
-
CEC: privilege applies to communications from an employee/agent if:
(1) Employee/Agent is a natural person to speak to the lawyer on behalf of a corporation in the matter (ex, corporation’s in-house counsel or CEO); OR
(2) Employee/Agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happend
NOTE No privilege for a mere witness who happens to be an employee
Exceptions to Attorney-Client Privilege
-
FRE:
(1) Multiple parties consult an attorney on a matter of common interest and communication is offered by one of these parties against another in subsequent litigation;
(2) Attorney’s services were sought to further a crime/fraud
(3) Communication relates to alleged breach of duty between attorney and client
(4) Client puts legal services at issue in the case
(5) Communication is relevant to an issue between parties claiming through same deceased person
CEC: Privilege does NOT apply where the lawyer reasonably believes that disclosure of communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.
Physician-Patient and Psychotherapist-Patient Privileges
- FRE: recognizes psychotherapist/social worker-patient privilege but NOT general physician-patient privielge
-
CEC: both privileges exist. Physician-patient privilege applies to a communication with a licensed physician or someone patient reasonably thinks is a licensed physcian for purpose of diagnosis/treatment, also applies to physican’s staff serving as agent to gather info to pass to physician.
Psychotherapist-Patient Privilege covers a wide range of mental health workers (social worker, counselor, school psychologist, mental health nurses, assistants, interns)
Exceptions to Physician-Patient & Psychotherapist-Patient Privileges
-
FRE: Psychotherapist-Patient Privilege N/A, CEC for both privileges N/A:
(1) Patient puts condition in issue
(2) Professional services sought to aid in crime or fraud, or escape capture after crime or tort
(3) Case alleges breach of duty between patient and psychoherapist/physician
(4) Communication is relevant to an issue between parties claiming through the same deceased patient
Additionally in CA, following exceptions:
* Psychotherapist privilege:
(1) Patient is dangerous
(2) Patient is child crime victim
(3) Psychotherapist is court-appointed
- Physician-patient privilege: Criminal cases
- Both privileges: Reporting required by law (gunshot wounds) or competency proceedings
Spousal Testimonial Privilege
Permits a witness-spouse to refuse to testify against their spouse
* FRE: Applies to CRIMINAL cases only
* CEC applies to CRIMINAL and CIVIL cases and extends to registered domestic partners. Spouse/Partner of the party may not be compelled to even take the witness stand.
Confidential Marital Communications Privilege
FRE & CEC: Confidential marital communications privilege applies in all CIVIL and CRIMINAL cases, can be invoked by EITHER SPOUSE, protects confidential communications that were made DURING MARRIAGE
CA extends to domestic partners
Other CA Privileges
- Confidential communications between sexual assault, DV, human trafficking counselor and victim
- Penitential communications between penitent and clergy member who routinely receives such communications and whose religion requires them to be kept secret (both persons hold privilege)
- Official gov info or identity of informer (Judge balances public interest and need for disclosure)
- Trade secrets
- Voter’s secret ballot
- Immunity from contempt of court for a news reporter who refuses to disclose their sources
Accountant-Client Privilege
As under federal law, CA does not recognize accountant-client privielge
Preliminary Considerations
- Facts upon which admissibility depends
- FRE: Judge is NOT bound by rules of evidnce, except privilege
- CEC: Judge is bound by rules of evidence (i.e., cannot use inadmissible hearsay evidence when making preliminary determination)
Judicial Notice of Facts
Court’s Discretion
FRE & CEC: Fact is appropriate for judicial notice if:
(1) Generally known within court’s jdx; OR
(2) Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned
Judicial notice of fact is mandatory only if a party requests it; if not, court has discretion to take judicial notice on their own accord
CA recognizes an exception = Even if NOT requested, court must take judicial notice of matters of generalized knowledge that are universally known
Judicial Notice of Facts
Conclusiveness
- FRE: Judicially noticed facts are conclusive in civil cases, but NOT criminal cases. I.e., if court takes judicial notice in civil case, court will instruct jury it must accept the judicially noticed fact as conclusive. But if takes judicial notice of criminal case, court instructs jury that it may accept judicially noticed fact as conclusive, but is not required to do so
- CEC: Judicially noticed fact is conclusive in both criminal AND civil cases
