California distinctions

Question 1

Prop 8

Answer 1

The California Right to Truth in Evidence amendment makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC, with the exception of evidence excluded under the CC, hearsay law, privilege law, limits on character evidence, California’s rape-shield statute, the secondary evidence rule, and CEC 352.

Question 2

Relevance

Answer 2

In California, the fact of consequence must also be in dispute.

Question 3

Subsequent remedial measures

Answer 3

Does not apply in strict liability cases, only in negligence cases

Question 4

Payments and offers to pay

Answer 4

Admissions of fact made in conjunction with payments or offers to pay medical expenses are inadmissible

Question 5

Plea discussions

Answer 5

unclear if Prop 8 makes this admissible in CA.

Question 6

Expressions of sympathy in civil cases

Answer 6

Expressions of sympathy relating to pain suffering or death of accident victim inadmissible in civil cases

Question 7

Immigration status

Answer 7

Evidence of immigration status not admissible or discoverable in civil actions for personal injury or wrongful death.

Question 8

Character evidence in civil cases involving sexual misconduct

Answer 8

NO EXCEPTIONS to general rule that character evidence is inadmissible to prove conduct in civil cases (no exception for sexual assault and child molestation).

Question 9

Character evidence in criminal cases involving sexual misconduct

Answer 9

California extends exception for sexual assault or child molestation, to other acts of domestic violence or elder abuse.

But does not extend to civil cases!

Question 10

Character evidence in criminal cases (victim’s character)

Answer 10

Where defendant has introduced evidence of victim’s character for violence, prosecution may rebut by offering evidence of defendant’s violent character.

In California, both parties may offer specific instances to prove the victim’s character.

Question 11

Character evidence in criminal cases (self-defense)

Answer 11

No exception for prosecution to offer evidence of victim’s peaceful character in cases where defendant argues self-defense

Question 12

Sexual assault victim’s past behavior

Answer 12

In criminal sexual assault cases ONLY, evidence of victims’ sexual conduct are all inadmissible to prove consent unless conduct was with defendant.

Question 13

Witness competency

Answer 13

In California, witnesses must also understand legal duty to tell the truth

Question 14

Expert testimony (reliability)

Answer 14

Unlike the federal Daubert standard, California applies the Kelly-Frye standard: the opinion must be based on principles that are generally accepted by experts in the field.

Question 15

Sequestration

Answer 15

unlike federal rule, where judge must grant, judge has discretion to grant or deny motion to sequester

Question 16

Bolstering

Answer 16

Permitted in criminal cases in California

Question 17

Prior inconsistent statements

Answer 17

Prior inconsistent statements may be offered for truth of the matter asserted (in addition to for impeachment) even if they were not made under oath.

Question 18

Prior felony convictions

Answer 18

Prior felonies are admissible in CA only if they involve moral turpitude, but court has discretion to exclude

Question 19

Prior misdemeanor convictions

Answer 19

Convictions for misdemeanors involving moral turpitude admissible in criminal cases and inadmissible in civil cases

Question 20

Bad acts

Answer 20

Not admissible in civil cases. Acts of moral turpitude admissible for impeachment in criminal cases (both cross exam and extrinsic evidence)

Question 21

Hearsay exclusions/exceptions

Answer 21

NO hearsay exclusions in CA; only exceptions

Question 22

Admissions of agents and employees

Answer 22

No equivalent–but a statement by an 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

Question 23

Other vicarious admissions

Answer 23

CA also allows:
- statements of the deceased in a wrongful death action against the plaintiff
- statements of the child in a parent’s action for minor child’s injury against the parent
- statements by the predecessor in interest in civil cases where a party’s right or title to property is at issue and depends on whether they hold or previously held right or title
- statement made by decedent in an action against decedent’s estate against the estate

Question 24

Statements against interest

Answer 24

Also applies to statements against declarant’s social interest; does not include corroboration requirement for statements subjecting declarant to criminal liability

Question 25

Former testimony

Answer 25

requires only that the party in the former action had a similar interest to party against whom the former testimony is being offered (not that they are a predecessor in interest).

also allows former testimony if being offered against person who offered it in evidence o their own behalf at prior proceeding or against that person’s successor in interest

Question 26

Dying declaration

Answer 26

applies in all criminal and civil cases but declarant must have died as a result

Question 27

Other CA hearsay exceptions requiring unavailibility

Answer 27

• statements describing infliction or threat of physical injury
• statements of past or physical emotional condition or state of mind, when at issue

Question 28

Present sense impression

Answer 28

applies only when a statement explains the declarant’s own conduct and is made while the declarant was engaged in that conduct

Question 29

statements describing infliction or threat of physical injury

Answer 29

statement made by unavailable declarant that describes, narrates, or explains the infliction or threat of physical injury admissible if
- it was made at or near time of infliction or threat,
- was in writing, recorded, or made to law enforcement or medical personnel, and
- made under circumstances that indicate trustworthiness

Question 30

medical diagnosis or treatment

Answer 30

applies only where the declarant is a minor and was under 12 at time of statement and their statement was made for medical diagnosis or treatment and described an act or attempted act of child abuse or neglect

Question 31

statements of past or physical emotional condition or state of mind, when at issue

Answer 31

in CA, statement of unavailable declarant’s past physical condition, emotional condition, or state of mind admissible to prove that condition if it is at issue in the case

Question 32

public records

Answer 32

record of an act, condition, or event by a public employee is admissible if
- making record was within their scope of employment,
- it was made at or near the time of the matters described, and
- the sources of info and time of preparation indicate trustworthiness

Question 33

self-authenticating writings

Answer 33

trade inscriptions and certified business records are not self-authenticating

Question 34

exceptions to physician/psychotherapist privilege

Answer 34

psychotherapist privilege does not apply if they have reasonable cause to believe patient is a danger to themselves and disclosure is necessary , the patient is a child under the age of 16 and they reasonably believe the child has been the victim of a crime, and they were court-appointed.

physician-patient privilege not applicable in criminal cases.

neither is applicable if the professional is required to report it to a public office or in competency proceedings

Question 34

Preliminary questions

Answer 34

Unlike in FRE, in CA, judge is bound by rules of evidence in making preliminary determinations

Question 35

judicial notice

Answer 35

exception to rule that judicial notice is mandatory only if party requests: even if not requested, court must take judicial notice of matters of generalized knowledge that are universally known.

judicially noticed facts are conclusive in both criminal and civil cases

Question 36

Spontaneous statement

Answer 36

Under the “spontaneous statement” exception, the declarant must have made the statement while under the stress of excitement caused by a startling event, and the statement must concern the immediate facts of the startling event.

Question 37

Spousal immunity

Answer 37

Applies to any proceeding–not just criminal

Question 38

Objection: Leading question

Answer 38

A leading question is one that suggests the answer and such questions are generally objectionable on direct examination

Question 39

Objection: Nonresponsive

Answer 39

A witness’ response may be stricken as nonresponsive if it goes beyond the scope of the specific question asked.

Question 40

Objection: Narrative/Speculation

Answer 40

An examining attorney may not ask a witness to speculate to hypothesize as to the existence or meaning of a fact