California Distinctions

Question 1

What is the difference between “Subsequent remedial measures” rule in FRE v. CA?

Answer 1

FRE- Not allowed to prove negligence OR defective product design

CA - Not allowed to prove negligence only. (can be used to prove defective product design in a products liability case)

Question 2

What is the difference between settlement offers rule in FRE v. CA?

Answer 2

FRE & CA - not allowed to prove liability or fault, but

- CA adds that statements during mediation proceedings are also inadmissible

Question 3

What is the difference between the “offers to pay medical bills” rule in FRE v. CA?

Answer 3

FRE - only the statement offering to pay is inadmissible, everything else is.

CA- Statements of paying medical bills including fault, within statement is inadmissible

Question 4

What is the CA “Expression of sympathy rule”

Answer 4

Inadmissible… however, statements showing liability are.

(i.e “I am so sorry you are hurt, I shouldn’t have put the banana on the floor.”)
The statement about the banana on the floor is admissible but the previous statement is not.

Question 5

To prove ∆ committed the tort (civil case), plaintiff offers evidence defendant committed other acts of sexual assault in the past. Is this admissible under FRE? CA?

Answer 5

Admissible under FRE
NOT admissible under CA.

CA rule - sexual assault or child molestation is an exception to character evidence in FRE in a civil or criminal case… however there are no exceptions in CA under a civil case… this exception is available only in a criminal case.

For criminal cases, CA broadens the exception. CA allows evidence for defendants past similar bad acts for

1) elder abuse
2) domestic violence.

RULE: IN CA,
-In civil cases, there are no character evidence exceptions.

• In Criminal cases, the exceptions are:
  1) Sexual assault or child molestation
  2) Elder Abuse
  3) domestic violence or
  4) after ∆ opens the door with character evidence for himself, or showing victim’s character for violence

Question 6

If the defendant opens the door to the victim’s character, can the prosecution provide evidence of the same character trait in defendant? In FRE? In CA?

Answer 6

In FRE: Yes, the ∆ opened the door to victim’s character, so prosecution can provide evidence showing defendant’s same character trait.

In CA (narrow): Not allowed unless ∆ gives evidence of victim’s character trait of VIOLENCE. Only then can prosecution show ∆’s character trait for violence too.

Question 7

What types of character evidence is allowed in FRE? in CA?

Answer 7

FRE:
direct examination: reputation or opinion
cross examination: all (includes specific instances)

CA:
Follows FRE to show ∆ character

BUT for victim’s character, allows all evidence at any time.

**hint… CEC only allows reputation/opinion evidence for bad character…
but Prop 8 applies allows this for criminal cases.
– Since in CA, civil cases do not allow any character evidence, this is not a problem.

Question 8

If defendant opens the door to character evidence of the victim, can the prosecution rebut the character evidence showing the victim had the opposite character? FRE? CA?

Answer 8

Yes, allowed in both FRE and CA

Question 9

What if in a homicide case, defendant claims self-defense because victim attacked him first, but does not provide evidence of victim’s character trait of violence. The prosecution then offers evidence that victim was actually a peaceful person. Is this allowed under FRE? CA?

Answer 9

FRE: Yes, this is allowed. This is the exception to the self-defense claim in a homicide case.

CA: This is not allowed. The prosecution must wait until either the defendant provides evidence of his own character trait for peacefulness, or provides character evidence of victim’s character of violence.

Question 10

In a civil tort action for sexual assault, the plaintiff offers evidence that defendant committed other acts of sexual assault in the past. Is this admissible under FRE? CA?

Answer 10

Admissible under FRE

Not admissible under CA - No exceptions to character evidence in civil case.

Question 11

In a criminal case, defendant is charged with domestic violence for assaulting his wife. He denies committing the assault. In the prosecution’s case in chief, the prosecution offers evidence that defendant previously assaulted his wife. Is this admissible under FRE? CA?

Answer 11

FRE - not admissible

CA- admissible (it’s an exception to the character evidence rule)

Question 12

Prosecution for theft of a diamond ring. Victim claims defendant stole her ring, but defendant claims that he is the true owner, and that it was actually victim who stole it. Defendant offers evidence that victim has character for dishonesty. May the prosecution now offer evidence that defendant has character for dishonesty under FRE? in CA?

Answer 12

FRE - Yes… ∆’s opening the door of victim’s character trait allows the prosecution to give evidence that ∆ has the same trait.

CA - No. In CA, the doors open separately. The only way evidence of victim’s character trait opens the door for defendant’s same character trait is when defendant shows that the victim has the character trait for violence.

Question 13

Defendant is charged with non-sexual assault of an elderly woman. He alleges self-defense and that the woman attacked him first. On direct examination the defense presents a witness that testifies that the victim once attacked her roommate. Is this admissible under FRE? CA?

Answer 13

FRE- Not admissible, because character evidence through specific instances is not allowed under direct examination. Only reputation/opinion evidence is allowed to show character evidence under direct examination.

CA - This is allowed. All types of character evidence of victim is allowed.

Question 14

What is CA prior inconsistent statement rule, and how does it compare to FRE?

Answer 14

CA Prior inconsistent statement rule is a hearsay exception regardless of whether it was given under oath. It can then be used as substantive evidence (to prove the matter asserted) and for impeachment.

FRE - PIC must have been given under oath to be used as substantive evidence. Otherwise, it is only used to impeach a witness.

Question 15

CA’s Impeachment with Prior Felony Rule:

Answer 15

1) felony must involve moral turpitude (all crimes except for negligent or unintentional acts)
2) Misdemeanors allowed only in criminal cases, not in civil cases
2) Court has discretion to balance
3) No inadmissibility due to 10 year old conviction rule

Compare with FRE
A) Conviction for crime involving deceit/lying-
1)can be both felony and misdemeanors
2) but court does not have discretion to balance. ———-Caveat **(presumed inadmissible if conviction is 10 yrs or older unless it can be shown that probative value outweighs the

B)conviction of other crimes,

1) can only be felony (no misdemeanors); 2)court has discretion to balance;
3) general inadmissibility of convictions that are 10 years or older

Question 16

Prosecution for tax fraud. Defendant testifies and admits his tax return did not report all his income, but claims this was unintentional. Prosecution offers evidence that Defendant was previously convicted of felony involuntary manslaughter. Can this be admissible in FRE? CA?

Answer 16

FRE - It may be admissible but court has discretion to balance. Here prejudicial effect may outweigh the probative effect so it may not work.

CA - Not allowed to use this as an impeachment tool because the previous conviction must be a crime of moral turpitude… negligence and involuntary acts are not crimes of moral turpitude.

Question 17

Prosecution for bank robbery . Defendant testifies he was in another city when the robbery happened. On cross-examination, prosecutor asks, “Isn’t it true that you were convicted last year of misdemeanor theft of a church poor box?” Defendant answers “Yes.” Is this admissible in FRE? CA?

Answer 17

FRE: This is not admissible because convicted misdemeanors are only admissible if it had to do with a crime of lying/deceit. This is not that.

CA: In a criminal case, all misdemeanor convictions are admissible if it had to do with a crime of moral turpitude (subject to the balancing test). This is theft, so this counts as a crime of moral turpitude… the only thing you need to do is balance the probative value with the prejudicial effect.

Question 18

NON-conviction misconduct FRE v. CA

Answer 18

FRE

1) must be a misconduct bearing on truthfulness
2) Extrinsic evidence is NOT allowed
3) Subject to balancing

CA
1) Must be a misconduct bearing on truthfulness
(cannot be negligent or unintentional b/c moral turpitude still plays a role)
2) Only available in CRIMINAL cases
3) Extrinsic evidence IS allowed

Question 19

Action of breach of contract. On cross examination of plaintiff, defense asks, “Isn’t it true you lied on you driver’s license application?” Plaintiff answers, “Yes.” Admissible in FRE? In CA?

Answer 19

FRE - Yes. no extrinsic evidence was given.

CA- No. Evidence of Non-conviction misconduct is not allowed in civil cases.

Question 20

CA: vicarious party admissions rule:

Answer 20

Employee statements are only adopted by employer if the statement came from the employee who made the employer liable.

Question 21

In a negligence action against UPS, plaintiff testifies that a UPS truck crashed through her kitchen window. The accident was caused by faulty brakes. The UPS driver said “The company mechanic sometimes forgets to check the brakes.” Admissible under FRE? CA?

Answer 21

FRE - Yes admissible. Statement made was in the scope of employment, and was made while the employee was still employed with employer.

CA- Not admissible. The declarant was not the one who made employer liable, it was the mechanic who made the employer liable.

Question 22

Statement against interest, CA rule

Answer 22

Same as FRE but adds a statement against social interest is also an exception. (one that can make the declarant an object of hatred, ridicule, or social disgrace.)

**Lisa, we Californians are quite arrogant if we care so much about that.

Question 23

Former testimony CA rule

Answer 23

Pretty much the same as FRE but
in civil case,
1) allows the evidence to be used against someone that had similar interests with the party in the previous action (no need for privity) OR
2) Allows the evidence to be used against the party who first presented it.

Question 24

An airplane crashes, killing all passengers. Estate of X sues for wrongful death. An expert testifies for the airline and dies after the trial. Estate of Y sues the airline for wrongful death. Can the Airline offer the transcript of the dead expert’s testimony in Y v. Airline under the FRE? CA?

Answer 24

FRE - No. must be in privity

CA - Yes… X and Y has similar interests.
X was able to cross examine and Y has the same motive as X to cross examine.

Question 25

Dying declaration CA rule

Answer 25

Same as FRE except

1) Available in all civil cases AND all criminal cases (not just homicide like FRE)
2) Declarant must be dead

Question 26

Present sense impression CA rule

Answer 26

(narrower than FRE)

Only statements that describe what DECLARANT was doing, while declarant was doing it.

Question 27

Statement describing infliction or threat of physical abuse (CA rule only)

Answer 27

stupid, and must watch out for confrontation Clause issue: [court came up with this masterpiece after the OJ case]

1) Statement made at or near time of threat or injury
2) by unavailable declarant
3) describing or explaining the infliction or threat
4) Made in writing or recorded or made to police, or to a medical professional
5) under trustworthy circumstances (corroborating circumstances?)

Question 28

In a murder prosecution, the government offers the sound of a recording of a telephone call Victim made to the police, in which she calmly state, “My for husband [∆] kicked me in the head 20 minutes ago.” When the police arrived, Victim was unconscious and later died of a brain injury. Admissible under FRE? CA? Any problems with this?

Answer 28

FRE: Inadmissible… not excited utterance because she calmly stated.

CA: Statement describing infliction or threat of physical abuse.

No Confrontation clause problems because the statement was made due to an ongoing emergency, not to build a case.

Question 29

Past physical/mental condition for diagnosis or treatment CA rule:

Answer 29

Only allowed if declarant is a minor talking about child abuse or neglect.

Question 30

Past physical/mental condition admissible in CA only… Rule?

Answer 30

A statement of declarant’s past mental/physical condition, (includes statement of intention) is admissible and doesn’t even need to be said for diagnosis/treatment… can be said to anyone.

Question 31

Plaintiff was taken to the emergency room for his back pain. He then says to a second patient in the room… “I was feeling fine before this accident.” The plaintiff is now in a coma. Can the patient, who is now plaintiff’s witness, testify as to what plaintiff said under FRE? CA?

Answer 31

FRE - No. Inadmissible hearsay.

CA - Yes… past physical/mental condition rule.

Question 32

Public Records exception (CA)

Answer 32

Like FRE but in CA, police records can be used in a criminal case (ii) and there is no limitations on the prosecution using (iii) investigative reports authorized by law.

Question 33

Attorney-client privilege CA exception that FRE does not have…

Answer 33

CA - Attorney client privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm

Question 34

Client meets with his attorney and states, “I want you to look for some tax shelters for me because my rich parents are about to have a fatal accident.” The attorney called the police, who arrived at defendant’s home too late to prevent the “accident.” Is the client’s statement admissible under FRE? CA?

Answer 34

FRE - Not admissible because the lawyer’s services were not sought to further a crime
(i.e. not trying to escape etc.)

CA - Is admissible.

Question 35

Psychotherapist privilege & doctor-patient exception (Rule of CA exception only)

Answer 35

psychotherapists privilege does not apply if psychotherapist has reasonable cause to believe that the patient is a danger to himself or to others, and that disclosure is necessary to end the danger

• OR -

doctor-patient privilege does not apply in

1) criminal cases Or
2) to information that doctor is required to report to a public office (i.e. gun shot wounds, some communicable disease.)