CA Evidence distinctions

Question 1

Judicial notice – must the court take it?

Answer 1

FRE: If requested, must take. If not requested, may take.

CEC: Whether requested or not, MUST take.

Question 2

Judicial notice – must the jury accept it?

Answer 2

FRE: Jury MUST accept in civil; MAY in criminal.

CEC: Just MUST accept in BOTH civil and criminal

Question 3

Relevance

Answer 3

FRE: Any fact; need not be in dispute

CEC: Must pertain to a disputed fact

Question 4

Prop 8

Answer 4

All relevant evidence is admissible in a criminal case. EXCEPT:

a. Confrontation clause (exclusionary rule)
b. Hearsay
c. Privilege
d. Secondary/Best Evidence Rule
e. Character Evidence (to prove Defendant’s or Victim’s conduct)
f. Balancing under CEC 352

Question 5

Character in civil cases (big 4)

Answer 5

FRE: Inadmissible in civil cases unless character is essential to an element or defense. Admissible in civil cases arising out of child molestation or sexual assault cases.

CEC: Same general rule. Does not follow FRE on child molestation/sexual assault

Question 6

Character in criminal case – Character of defendant

Answer 6

FRE: Reputation (R), Opinion (O) on direct, and specific acts (SA) are OK on cross.

CEC: Reputation and opinion ONLY; no specific acts on cross.

Question 7

Character in criminal case – Types of evidence available to show character of victim

Answer 7

FRE: Limited to reputation or opinion.

CEC: Can use R, O, and now SA are permissible.

Question 8

Character in criminal case – Character of victim in homicide case

Answer 8

FRE: Prosecution can present good character evidence if Defendant claims Victim was initial aggressor.

CEC: Defense must first offer bad character of victim for violence.

Question 9

Impeachment – use of specific instances of dishonest acts

Answer 9

FRE: A party can ask a question on cross, but stuck with witness’s answer. No extrinsic evidence is allowed. Civil or criminal cases.

CEC: If the witness denies, then can use extrinsic evidence. CRIMINAL ONLY.

Question 10

Impeachment – prior inconsistent statement

Answer 10

FRE: Admissible substantively, only if under oath (801).

CEC: Admissible substantively, whether or not under oath.

Question 11

Impeachment – prior consistent statement

Answer 11

FRE: Must be made before motive to lie arose.

CEC: PCS only has to be made before the alleged inconsistent statement.

Question 12

Experts

Answer 12

FRE: Daubert

CEC: Frye

Question 13

Public policy – SRM

Answer 13

FRE: SRMs inadmissible.

CEC: SRMs admissible in strict liability cases.

Question 14

Public policy –offers to pay medical expenses

Answer 14

FRE: Offers to pay medical expenses does not also cover accompanying statements.

CEC: Both the offer and the accompanying statement are covered (i.e., inadmissible).

Question 15

Hearsay exceptions – dying declaration

Answer 15

FRE: Dying declarant needs to be unavailable but need not be dead, and only in homicide case.

CEC: Any case, but only if declarant is DEAD.

Question 16

Hearsay exceptions –declaration against interest

Answer 16

FRE: Declaration against interest is against penal, proprietary, or pecuniary interest.

CEC: Add subjecting declarant to social ridicule too.

Question 17

Hearsay exceptions –Present sense impression

Answer 17

FRE: Present sense impressions include events happening to anyone.

CEC: Contemporaneous statements regarding declarant’s conduct ONLY.

Question 18

CA’s additional hearsay exception

Answer 18

“OJ exception”

Requirements:

(1) Unavailable declarant;
(2) Statement describing or explaining infliction or threat of physical abuse;
(3) Made at or near time of injury or threat;
(4) In writing, recorded, or made to police or medical professionals;
(5) Under trustworthy circumstances.

Question 19

Hearsay exceptions –statements for medical diagnosis

Answer 19

FRE: Statement for medical diagnosis or treatment covers cause of injury.

CEC: Source of injury is inadmissible.