California Distinctions

Question 1

Excluding evidence California Distinction:

Answer 1

Same as fed EXCEPT PROP 8 makes ALL RELEVANT EVIDENCE ADMISSIBLE in crim cases.

Question 2

Exceptions to prop 8:

Answer 2

hearsay law, privilege law, limits on character evidence to prove D’s conduct, limits on character evidence to prove V’s conduct, Secondary evidence rule AND court’s ability to weigh prejudice vs. probative value

Question 3

Relevance in CA:

Answer 3

Same except FACT OF CONSEQUENCE MUST ALSO BE IN DISPUTE

Question 4

Subsequent remedial measures difference:

Answer 4

CA does not apply to product liability cases

Question 5

Settlement offers:

Answer 5

applies to mediation discussions

Question 6

Offers to pay med expenses:

Answer 6

any admissions within the whole statement are inadmissible (I’ll pay your hospital bill, shouldn’t have left banana peel there), Fed only hospital bill excluded, CA whole statement excluded)

Question 7

Prior acts of child molestation/sexual assault to prove conduct in this case

Answer 7

In CA you can’t bring in evidence of prior acts of sexual assault to prove how they acted in this case

Question 8

Past acts difference b/w fed and CA:

Answer 8

Fed: when D shows victim’s character trait, Prosecution can bring evidence of D’s SAME character trait.
CA: for crime of Domestic Violence, elder abuse, prosecution can bring evidence that D committed other acts of DV and elder abuse.
CA: When D brings evidence of victim’s VIOLENT character, prosecution can show D’s VIOLENT character (narrower than fed above)

Question 9

Witness competence differences:

Answer 9

CA: Witness must also understand legal duty to tell the truth

Question 10

Learned Treatises:

Answer 10

California can ONLY show to use matters of general notoriety or interest (very narrow, never applicable)

Question 11

Prior inconsistent statements of witnesses:

Answer 11

CA all prior inconsistent statements of witnesses are admissible whether or not under oath.

Question 12

Prior felonies

Answer 12

CA: all felonies involving moral turpitude, no moral turpitude=not admitted. Still balance though. (negligence/unintentional acts does not equal moral turpitude)

Question 13

Prior misdemeanors

Answer 13

inadmissible unless crime of moral turpitude under prop 8 crim case (CAN’T ADMIT IN CIVIL CASE TO IMPEACH IN CA)

Question 14

Prior convictions time limit

Answer 14

10 years or older usually fed courts say inadmissible BUT NO RULE IN CA but still balance probative/prejudice

Question 15

Non-conviction misconduct bearing on truthfulness:

Answer 15

Fed: admissible if asked in good faith (no extrinsic evidence) CA: inadmissible unless in crim case it’s relevant (moral turpitude)

Question 16

Admission of party opponent:

Answer 16

CA: nonhearsay, CA hearsay but exception.

Question 17

Prior inconsistent statement of witness:

Answer 17

Not hearsay if used to impeach, if used to prove: Fed=only if given under oath. CA: Hearsay BUT allowed b/c all prior inconsistent statements are allowed in

Question 18

Declaration against interest:

Answer 18

CA includes statements against social interests. Must know it was against interest at time of making it

Question 19

Former testimony:

Answer 19

Fed: admissible if there’s privity-type relationship b/w past party and this one. CA: only if interests are similar. CA: Depo testimony in same civil action admissible if deponent is unavailable at trial or lives 150 miles away.

Question 20

Dying Declaration exception:

Answer 20

Fed: believes he’s about to die, describes circumstances leading to death allowed in CIVIL and HOMICIDE PROSECUTION if declarant unavailable.
CA: ALL CIVIL/CRIM CASES and MUST BE DEAD

Question 21

Present sense impression:

Answer 21

CA: can only be used when describing the declarant’s actions as he’s doing them
OR CA: description of a threat made to police/medical professional as it is happening

Question 22

past/present mental/physical condition made for diagnosis/treatment:

Answer 22

CA: ONLY IF declarant is minor and describing act of child abuse/neglect

Question 23

Public records exception:

Answer 23

Fed: Not admissible in crim cases CA: can be used by prosecution BUT confrontation clause may be an issue

Question 24

Ancient docs:

Answer 24

Fed: 20 years old it is allowed in so long as no irregularities, found in place of natural custody, authenticity is established. CA it is 30 years

Question 25

Best evidence rule:

Answer 25

CA called “secondary evidence rule” - CA lets duplicates AND OTHER WRITTEN EVIDENCE OF CONTENTS OF ORIGINAL (handwritten notes)

Question 26

Attorney client privilege

Answer 26

Fed: survives death CA: ends once estate is distributed, executor is discharged

Question 27

Attorney client privilege

Answer 27

can be broken if 1) professional services sought to further crime/fraud 2) lawyer gets sued CA ONLY: does not apply when lawyer believes disclosure necessary to prevent crime likely to result in death/substantial bodily harm

Question 28

Doctor-patient/ psychotherapist-patient privilege

Answer 28

fed: NO DOCTOR-PATIENT CA: both apply

Question 29

spousal testimonial privilege:

spousal confidential communication is same in CA/Fed

Answer 29

FED: only crim cases CA: crim and civil, can’t even call to witness stand for TESTIMONIAL PRIVILEGE: but spousal confidential communication can be called to witness stand.

Question 30

Judicial notice:

Answer 30

CA: court MUST take judicial notice of matters generally known within jx, jury MUST accept as true in crim and civil cases

Question 31

Excited Utterance:

Answer 31

In California it is called the “spontaneous statement”, declarant’s statement admissible if declarant was still under the stress of excitement caused by the startling event

Question 32

Declarations of physical condition:

Answer 32

Fed: statement of present bodily condition admissible and CALIFORNIA ONLY: allows past bodily condition or PAST state of mind ONLY IF DECLARANT UNAVAILABLE b/c it raises issues of false recollection.

Question 33

Spousal confidential communication:

Answer 33

Fed: both spouses hold, and both spouses can prevent OTHER PEOPLE from disclosing confidential communications so long as cmn was made in reliance on the intimacy of the marital relationship

Question 34

Business records elements

Answer 34

1 business 2. Entry made in regular course of business 3. Personal knowledge 4. Entry made near time of event 5. Authentication through testimony or certified copy