CA Evidence Flashcards
Relevance
FRE–Relevant if ANY tendency to make a fact more or less probable than it would be w/o the evidence (i.e. probative).
CA–must be relevant to a DISPUTED fact (e.g. under CA evidence of a prior felony would be irrelevant if not disputed).
CA Prop 8–ONLY applies to crim cases
In crim proceeding–CA const provides that relevant evidence shall NOT be excluded unless it falls under an exception:
1) exclusionary rule;
2) hearsay;
3) privilege;
4) limits on character evidence to prove D or V’s conduct’
5) BER; or
6) 352–Prejudicial impact > probative value
Character Evidence
Civil cases–gen rule inadmissible to prove conduct conforming w/ character; unlike FER CA has NO exception for past sexual/violent misconduct in civil cases dealing w/ rape/child molestation/sexual assault/domestic violence/elder abuse (but permissible in crim cases dealing w/ same charges).
Exception CA (like FER)–character is an essential element of claim/defense (e.g. defamation/neg entrustment)–usually civil cases.
Crim cases–like FER in that Prop 8 does not change rule that prosc not permitted to intro evidence of D’s bad character to prove propensity (unless case is one where D accused of committing rape/child molestation/sexual assault/domestic abuse/elder abuse); also like FER in that if D “opens door” w/ good character evidence of pertinent trait then prosc can respond w/ bad character evidence (only reputation/opinion admissible);
CA differences from FER:
1) crim D may attack V’s character w/ opinion/reputation AND specific acts;
2) also unlike FER self-D claim is NOT considered an attack on V’s character;
3) in crim cases rebuttal evidence only works for character of violence.
Like FER in CA prior act evidence admissible for MIMIC–i.e. motive; intent; absence of mistake; identity; common plan.
W Competence–Hypnosis
Unlike FER CA has specific hypnosis rules:
1) crim D who has undergone hypnosis can testify;
2) in civil cases Ws who have been hypnotized not necessarily competent to testify–i.e. inadmissible unless the testimony is recounting info revealed before hypnosis took place; and
3) in crim cases Ws who have been previously hypnotized can only testify if: only testifies about things remembered before the hypnosis; there is a written record of W’s pre-hypnosis recollection; session was video-taped; hypnotists was licensed; and police/prosc were not present.
Judge as a W ; Juror as W post-trial
Unlike FER in CA a judge MAY testify as W if no P objects
Jurors post-trial:
Unlike FER in CA jurors can provide info on ANY improprieties that may have affected the jurors (not just outside influences like FER) but cannot testify as to how those influences affected their reasoning.
W Impeachment via Prior Convictions
Under CA/Prop 8:
Crim cases–W’s character may be bolstered w/o any attempt by prosc to impeach (unlike FER); can be done w/ opinion/reputation and specific acts.
Civil–P cannot offer good character evidence until W has been attacked.
Convictions to impeach in civil cases:
–Unlike FER (felony and misdemeanor) in CA ONLY FELONY convictions involving moral turpitude are admissible for impeachment–e.g. crimes of dishonesty; crimes of violence; NOT involving moral turpitude–e.g. invol manslaughter; simple assault or simple drug poss.
Convictions to impeach in crim cases:
CA/Prop 8–all felony AND misdemeanors involving moral turpitude admissible as long as prejudice does not sub outweigh PV (unlike FER no “reverse rule” for balancing interests when D is W and no 10-yr limit).
W Impeachment via Dishonest Conduct
Unlike FER (civil and crim) in CA evidence of prior bad acts admissible ONLY in crim cases–BUT remember can still introduce dishonest conduct for a non-impeachment purposes (e.g. bias).
Unlike FER such instances may be proven by extrinsic evidence–e.g. in a crim case the income tax form cannot be introduced in fed ct to prove a lie; but in CA the form could be offered as proof that W lied.
Both FER/CA–must be a REASONABLE basis for Q about dishonest acts.
W Impeachment via Prior Inconsistent Statements
Unlike FER (prior inconsistent statements ONLY admissible for truth if under oath)–in CA ALL prior inconsistent statements admissible for their truth AND impeachment.
–No leading Qs regarding prior inconsistent statement.
Rehabilitating W
Unlike FER (req prior statement to be before motive developed to lie) in CA a prior consistent statement may always be used to rehabilitate W so long as statement made before W’s alleged inconsistent statement.
Lay W/Expert W Testimony
Lay W–same as FER
Expert W–Kelly/Frye test in CA in that proponent must show the scientific theory/technique has been gen accepted as valid and reliable in relevant scientific (not merely reliable to the ct under FER).
Tangible Evidence–Documentary Evidence and BER (aka “Secondary Evidence Rule” in CA)
Unlike FER (20 yrs)–in CA a dispositive doc (e.g. will/deed) that is over 30 yrs old is presumed to be authentic if it does not look suspicious; is found in a place where it would likely be if authentic; and has been treated as authentic by ppl who care about its authenticity.
Unlike FER–in CA business records are NOT self-authenticating.
Secondary Evidence Rule–unlike FER (handwritten copies of original only admissible when original lost/destroyed) in CA allows both duplicates and handwritten copies.
Privileges
CA exceptions to A-C privilege–1) C sought A’s help in committing fraud/crime; 2) C is dead and estate no longer exists; 3) A reasonably believes disclosure nec to prevent crim act involving death or sub bodily harm.
Spousal Immunity–unlike FER (just crim cases) in CA applies to BOTH civil and crim cases.
Confidential marital comms–applies regardless of when S is called to testify and regardless of whether Ps are still married.
Physician-Patient–unlike FER (no CL privilege) in CA statements made by patient to a doc for purpose of obtaining medical treatment or diagnosis for physical, mental or emotional condition are privileged; patient holds the privilege; NO privilege if lawsuit involves patient-doc rel, in crim cases, or when doc has duty to report.
Privileges Cont’d
Unlike FER in CA there is a clergy-penitent privilege–conf comm made by a P to a member of the C is privileged; clergy must customarily receive such comms in order to be privileged; both hold privilege.
Unlike FER in CA there is a professional journalist privilege–reporters may not be held in contempt for refusing to disclose unpublished info unless nec to provide crim D w/ right to fair trial.
Unlike FER in CA there is a sexual assault counselor-V privilege–covers conf comms w/ authorized sexual assault counselor or caseworker.
Public Policy Exclusions
Unlike FER in CA the Subsequent Remedial Measures privilege does NOT apply to strict liability cases.
Offers to Pay Medical Expenses–unlike FER (where offers to pay inadmissible BUT statements accompanying offers to pay/payments admissible) in CA both accompanying statements and offers to pay inadmissible.
Plea Neg–unlike FER (limited to plea bargain convos b/t pros and D) in CA privilege extends to pleas convos w/ police; nolo contendere pleas–FER not admissible for felony or misdemeanor please; but in CA nolo contendere felony pleas admissible.
D’s prior sexual conduct–unlike FER (admissible in both crim/civil cases of sexual assault/child molestation) in CA only admissible in crim cases.
Distinctions b/t Federal “Non-Hearsay” and CA Hearsay Exceptions for Testifying Ws
Prior Inconsistent Statements–ALL prior inconsistent statements (not just those under oath under FER) are admissible for impeachment AND as substantive evidence.
Prior Consistent Statements–unlike FER in CA PCS must merely be made before alleged inconsistent statement.
Prior Statement of Identification–CA has 2 extra reqs in addition to req W who made ID to testify at trial: 1) must show by preponderance that at time of prior ID events were fresh in W’s mind; and 2) W must testify that the time of prior ID W believed the ID was accurate.
Opposing P’s Admissions–in CA the D’s vicarious statement is limited to the D’s own activity; e.g. driver says “I think the mechanic forgot to screw the bolts”–might be vicarious admission under FER but NOT CA.
