California Evidence

Question 1

Prop 8

Answer 1

“Right to Truth-in-Evidence” “Victim’s Bill of Rights”
This makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC.

Question 2

Prop 8: Exceptions

Answer 2

Exclusionary rules under the U.S. Constitution, such as the Confrontation Clause
Hearsay law
Privilege law
Limits on character evidence to prove the defendant’s conduct or the victim’s conduct
Evidence that is barred by California’s rape-shield statute
The secondary evidence rule (California’s version of the best evidence rule)
CEC 352 (California’s version of Federal Rule of Evidence 403— the court’s power to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, etc.)

Question 3

Approach to Applying CA Law on Essays

Answer 3

Apply CEC
Address Prop 8 in criminal case
Acknowledge court can apply balancing test to exclude evidence even if Prop 8 applies

Question 4

Relevance

Answer 4

Relevant if it has any tendency to make a fact of consequence to the action more probable or less probable

In CA: Evidence must concern a disputed fact

Question 5

CA Rule 352

Answer 5

= FRE 403

Question 6

Public Policy Exclusions: Subsequent Remedial Measures

Answer 6

CA: Does not apply in strict liability cases. Negligence cases only.
Ie. Can show SRMs in CA

Question 7

Public Policy Exclusions: Settlement Negotiations

Answer 7

FRE: Inadmissible, even surrounding statements
CA: Same, also excludes any statements or writings made for purpose of mediation

Question 8

Public Policy Exclusions: Offers to Pay Medical

Answer 8

FRE: Inadmissible for liability
CA: Any statements made in connection with offer are not admissible

Question 9

Public Policy Exclusions: Offers to Plea

Answer 9

FRE: Inadmissible, even facts around

CA: Maybe Prop 8 issue

MIGHT be applicable under CA constitution

Question 10

Public Policy Exclusions: Expressions of Sympathy in Civil Cases (CA only)

Answer 10

CA special rule:
Expressions of sympathy relating to accident victim’s pain, suffering, or death are inadmissible in civil cases

Statements of fault are admissible

Question 11

Public Policy Exclusions: Evidence of Immigration Status

Answer 11

Evidence of person’s immigration status is inadmissible in personal injury and wrongful death cases

Question 12

Character Evidence

Answer 12

Under the Federal Rules, there is an exception where the civil claim is based on sexual assault or child molestation. The defendant’s prior acts of sexual assault or child molestation are admissible to prove defendant’s conduct in such a case.

California does not recognize the above exception. In other words, in California, there are no exceptions to the general rule that character evidence is inadmissible to prove conduct in civil cases.

Question 13

Character Evidence in Criminal Cases

Answer 13

FRE: Starts no character evidence for D or victim until D opens doors, same in CA to start

D permitted to open door and show good character with reputation or opinion testimony, but then P can show bad character

Prop 8 does not change this law, one of the exceptions

Question 14

Character Evidence in Criminal Cases: Prior Similar Acts in Sexual Assault and Child Molestation Cases

Answer 14

Evidence of D’s prior similar acts allowed even in P’s case in chief (FRE and CA crim only)

California extends the above exception. In a prosecution for a crime of domestic violence or elder abuse, the prosecution may offer evidence that the defendant committed other acts of domestic violence or elder abuse.

Under federal law, where the defendant has introduced evidence of the victim’s bad character, the prosecution may rebut by offering evidence that the defendant has a bad character for the same trait.

In California, where the defendant has introduced evidence of the victim’s character for violence, the prosecution may rebut by offering evidence that the defendant has a violent character

Only violence in CA, any trait for FRE

Question 15

Character Evidence in Criminal Cases: Good Character Evidence

Answer 15

Once the defendant introduces evidence of their own good character in the form of reputation and opinion testimony, the prosecution is allowed to cross-examine the defendant’s character witness about the defendant’s specific instances of conduct.

These specific instances of conduct are not permitted to prove the defendant’s character, but are permitted for the limited purpose of attacking the character witness’s direct examination testimony.

This is true under both federal and California law.
Only to attack witness credibility

Question 16

Character Evidence in Criminal Cases: Victim’s Character in Criminal Case

Answer 16

Door closed until D opens (Prop 8 exception)

Homicide Exception (Federal Only)

Under the Federal Rules, in a homicide case, if the defendant offers any sort of evidence that the victim attacked first, the door is open and the prosecution can offer reputation or opinion evidence that the victim had a peaceful character.

California does not have an equivalent rule.

Question 17

Character Evidence in Criminal Cases: Admissibility of Specific Instances of Victim’s Conduct

Answer 17

Unlike FRE, CA allows evidence of victim’s specific instances of conduct to prove victim’s character

In California, specific acts are admissible to prove the victim’s character on both direct and cross-examination. In other words, the defendant can offer evidence of the victim’s character in the form of reputation, opinion, and specific instances of conduct.

Once the door has been opened, the prosecution can rebut with evidence in the form of reputation, opinion, and specific instances of conduct.

Question 18

Character Evidence in Criminal Cases: Sexual Assault Victim’s Behavior

Answer 18

FRE: Any civil or crim proceeding: not allowed with limited exceptions
CA: Inadmissible

Applies only in criminal cases
Excludes evidence of victim’s sexual conduct to prove consent, unless conduct was with defendant

Excludes victim’s manner of dress
Exception to Prop 8

Question 19

Character Evidence in Criminal Cases: D’s Similar Misconduct in Certain Cases

Answer 19

FRE: both civil and crim allow past sexual misconduct in those cases
California admits such evidence in criminal cases but not in civil cases.

Additionally, in criminal cases, California extends the rule to other types of crimes:
In prosecutions for domestic violence or elder abuse, the defendant’s other similar acts are admissible

Question 20

Testimonial Evidence

Answer 20

FRE: Both federal and California law require witnesses to testify based on personal knowledge and to take an oath or make an affirmation to tell the truth.
In California, the witness also must understand their legal duty to tell the truth.
Competency of the witness

Question 21

Testimonial Evidence: Reliability of Witnesses

Answer 21

FRE: Daubert-Kumho standard weighs factors of expert evidence
CA: Kelly-Frye standard: Only factor is general acceptance in the field.
Not changed by Prop 8

Question 22

Testimonial Evidence: Learned Treatise Hearsay Exception

Answer 22

Once established as an accepted authority in the field, a learned treatise that is relied upon by an expert or called to an expert’s attention on cross-examination is admissible to prove any facts contained in the treatise.

In California, a learned treatise is admissible only to show “facts of general notoriety or interest” found in published maps or charts, or in books of history, science, or art.

The takeaway is that this hearsay exception is very narrow and almost never applicable. Therefore, a learned treatise is usually admissible only on cross-examination of an expert witness.

Question 23

Credibility and Impeachment of Witnesses: Accrediting or Bolstering

Answer 23

Under federal law, with certain exceptions, a party is not permitted to bolster the testimony of their witness until the witness has been impeached. The California rule is the same in civil cases.

But in criminal cases, Prop. 8 allows both the prosecutor and the defendant to bolster a witness’s credibility before it has been attacked.

Question 24

Credibility and Impeachment of Witnesses: Prior Inconsistent Statement

Answer 24

Admissible for inconsistency and credibility if given at trial or deposition (exclusion)
Or to attack character

CA Difference:
Prior inconsistent statements of a testifying witness are categorized as a hearsay exception

The exception extends to all prior inconsistent statements, even if they were not made under oath

Question 25

Credibility and Impeachment of Witnesses: Prior Felony Convictions

Answer 25

FRE: crimes for dishonesty in dishonesty based proceeding allowed without discretion (except old)
Any other crime and a felony, may be allowed but must be balanced
Against D: balancing test skewed against prosecutor
Against other: 403

CA:
Only felonies that involve moral turpitude are admissible in CA

Moral turpitude:
Crime of lying, violence, theft, extreme recklessness, or sexual misconduct
In civil cases, only that conviction happened. In crim cases, even details due to Prop 8

Question 26

Credibility and Impeachment of Witnesses: Prior Misdemeanor Convictions

Answer 26

FRE: dishonesty always in, Convictions for misdemeanors that do not involve dishonesty or false statement are inadmissible.

CA:
Criminal: misdemeanors involving moral turpitude admissible (due to prop 8)
Civil: inadmissible (even dishonesty)

Question 27

Credibility and Impeachment of Witnesses: Older Convictions

Answer 27

Federal Rules: if a conviction qualifies for impeachment but more than 10 years have passed since the date of conviction or release from prison (whichever is later), it’s inadmissible unless the court determines that the conviction’s probative value substantially outweighs its prejudicial effect (a tough balancing test to pass)

CA:
No timing rule
Age may be considered as part of CEC 352 balancing

Question 28

Credibility and Impeachment of Witnesses: Impeachment with Bad Acts (non-crimes)

Answer 28

FRE: Lying can be admitted, but can only ask about it. Can’t use second witness or other evidence.

CA:
Criminal: Acts of moral turpitude admissible (due to Prop 8)
Civil: Inadmissible, not considered a proper way to impeach

Question 29

Credibility and Impeachment of Witnesses: Rehabilitation with Prior Consistent Statements

Answer 29

Under the Federal Rules, a party can rehabilitate an impeached witness by introducing the witness’s prior consistent statement if:
(1) the testimony of the witness was attacked by a charge that the witness is lying or exaggerating because of some improper motive, if the prior consistent statement was made before the motive to lie arose; or
(2) the witness was impeached on some other ground, and the prior consistent statement tends to rehabilitate the witness.

The California rule is the same with respect to category (1) above (improper motive), but is more specific with respect to category (2).

A prior consistent statement is admissible if the witness was impeached with a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement.

Under federal and California law described above, a prior consistent statement of a testifying witness that is admissible for rehabilitative purposes is also admissible as substantive evidence of the truth of its contents. Under the Federal Rules, prior consistent statements are not hearsay. In California, they are admissible under a hearsay exception.

Question 30

Hearsay in CA

Answer 30

Exception to Prop 8

Question 31

Hearsay Exception: Statement by Opposing Party

Answer 31

FRE: exclusion to hearsay

CA: Hearsay, but an exception as “party admissions”

Vicarious:
FRE: agent speaking in normal conduct of agency

CA: Admissible as exception only in civil cases where employee’s negligent conduct is basis for employer’s liability
Ie. the employer is responsible for the employee’s words only if they are also responsible in tort law because of that employee’s conduct

Question 32

Hearsay Exception: Prior Statements of Testifying Witnesses: Identification

Answer 32

CA: Admissible as exception if
ID was of person who participated in crime or occurrence
Witness made identification while memory was fresh
Witness confirms in court that they made the identification and that it truly reflected their understanding at the time

Question 33

Hearsay Exception: Prior Statements of Testifying Witnesses: Testifying Witness’s Prior Inconsistent Statement

Answer 33

FRE: hearsay unless under oath
CA: Admissible as exception regardless of made under oath

Question 34

Hearsay Exception: Prior Statements of Testifying Witnesses: Testifying Witness’s Prior Consistent Statement

Answer 34

Admissible to rehabilitate a witness and truth of whats asserted if:
Logically rebuts an attack on credibility
Exclusion in FRE, Exception in CEC

Question 35

Hearsay Exception: Exceptions for Unavailability: Grounds for unavailability

Answer 35

Dead
Privilege
Refuse to testify despite court order
Not at trial despite reasonable efforts to procure attendance
Memory (not in CA unless total memory loss)
CA: witness can be unavailable due to fear

Question 36

Hearsay Exception: Statements Against Interest

Answer 36

FRE: unavailable, contrary to pecuniary interest, in crim: confessions good with corroborating evidence

CA:
No corroboration requirement in criminal cases
Also applies against social interests

Question 37

Hearsay Exception: Former Testimony

Answer 37

FRE: Admissible if being offered against party present in first case who could have had the chance to confront them
Or if not able to confront: party in first case had opportunity and was “predecessor in interest”
Close privity type of relationship
Only civil case

CA: Does not require predecessor in interest, just “similar” interest required
Unavailable declarant’s former testimony also admissible if being offered against party who offered it in prior proceeding

Question 38

Hearsay Exception: Former Testimony: Related California Law—Deposition Testimony in Same Civil Case The CEC applies

Answer 38

when the former testimony is from a deposition in the same civil case. The deposition testimony is admissible for all purposes if the deponent:
(1) is unavailable to testify at trial, or
(2) lives more than 150 miles from the courthouse

Question 39

Hearsay Exception: Dying Declaration

Answer 39

FRE: homicide prosecution or any civil case, does not have to die

The California exception is different in 2 important ways:
The exception applies in all criminal and civil cases.
The declarant must have died as a result of what happened.

Question 40

Hearsay Exception: Statement Offered Against Party Procuring Declarant’s Unavailability

Answer 40

California recognizes this exception, and specifically provides that the judge has discretion to exclude the statement if it appears untrustworthy

Question 41

Hearsay Exception: Statement Offered Against Party Procuring Declarant’s Unavailability: Related California Exception—Statements of Kidnapped or Murdered Declarant in Criminal Case

Answer 41

Statement of kidnapped or murdered declarant admissible if:
Prosecution for serious felony
Unavailability caused or aided by defendant
For purpose of preventing defendant’s arrest or prosecution

Question 42

Hearsay Exception: Other California Exceptions Requiring Unavailability

Answer 42

There are 2 more California-specific exceptions that require the declarant to be unavailable:
Statements describing the infliction or threat of physical injury
Statements of past physical or emotional condition or state of mind, when at issue in the case

Question 43

Hearsay Exception: Present Sense Impression

Answer 43

CA: Declarant’s explaining own conduct only

Question 44

Hearsay Exception: Present Sense Impression: Related Exception – Statement Describing Infliction or Threat of Physical Abuse

Answer 44

Statement that describes, narrates, or explains infliction or threat of physical injury admissible if:
Declarant unavailable

Statement was:
Made at or near time of infliction or threat
Either (1) in writing, (2), recorded, or (3) made to law enforcement or medical personnel
Made under trustworthy circumstances
Remember, the Confrontation Clause applies to testimonial hearsay statements, and some statements to the police are testimonial in nature.

Question 45

Hearsay Exception: Excited Utterance Clause

Answer 45

CA: “Exception for spontaneous statements”

Question 46

Hearsay Exception: Statements of then existing state of mind or physical condition

Answer 46

The only difference in California is that the trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness.

Question 47

Hearsay Exception: Statements Made for Purposes of Medical Diagnosis or Treatment

Answer 47

CA much narrower:
It applies only where:
(1) the declarant is a minor at the time of the proceedings and was under age 12 at the time of their statement, and
(2) their statement was made for the purpose of medical diagnosis or treatment and described an act or attempted act of child abuse or neglect.

Question 48

Hearsay Exception: Statements Made for Purposes of Medical Diagnosis or Treatment: Related California Exception—Past Condition or State of Mind When at Issue in Case

Answer 48

In California, a statement of an unavailable declarant’s past physical condition, emotional condition, or state of mind (including their motive, intent, or plan) is admissible to prove that condition if it is an issue in the case.

There is no requirement that the statement be made for medical purposes.
The trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness

Must be unavailable

Question 49

Hearsay Exception: Business Records

Answer 49

The California business records exception does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses.

CA: custodian must be a witness who testifies, can’t be written

Question 50

Hearsay Exception: Public Records Exception

Answer 50

Under CA’s broader exception, any public record admissible if:
Within scope of public employee’s duties
Made at or near time of matters described
Trustworthy

Question 51

Hearsay Exception: Felony Judgments

Answer 51

Under the Federal Rules, a felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment. However, when offered by the prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible.

California’s specific exception for convictions applies only in civil cases.
Prop. 8 doesn’t change this hearsay law.

However, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases.

Question 52

Hearsay Exception: Civil Judgments

Answer 52

Usually not admitted

CA exceptions:
A party may offer a final judgment against themselves when they sue another for indemnification, or to enforce a warranty, or to recover for breach of warranty.
Where a third party’s liability or obligation is at issue in a civil case, a final judgment against that third party is admissible.

Question 53

Hearsay Exception: RESIDUAL “CATCH-ALL” EXCEPTION

Answer 53

The Federal Rules recognize a catch-all exception for particularly trustworthy and necessary hearsay statements.

California does not recognize a catch-all exception, but judges can create new hearsay exceptions by decisional law

Question 54

Authentication: Ancient Document Rule

Answer 54

Under the Federal Rules, a document qualifies as “ancient” if it is at least 20 years old. In California, the document must be more than 30 years old.

Question 55

Authentication: Ancient Document Rule: Related Hearsay Exception

Answer 55

The federal hearsay exception for related documents applies to documents prepared before 1998.

In California, the timing requirement is the same as for authentication—the hearsay exception applies to documents that are more than 30 years old.

Question 56

Authentication: Self-Authenticating Writings

Answer 56

In California, trade inscriptions and certified business records are not self-authenticating

Question 57

Authentication: Best Evidence (Secondary Evidence in CA)

Answer 57

Called “secondary evidence”, exempt from Prop 8
Admissibility of Duplicates and Other Secondary Evidence

CA:
Duplicates and any written secondary evidence admissible
Oral testimony not admissible without valid excuse

Question 58

Testimonial Privileges in CA

Answer 58

Exception to Prop 8

Question 59

Testimonial Privileges: Confidentiality

Answer 59

Communications between persons in privileged relationship presumed confidential in CA

FRE: only married

Question 60

Testimonial Privileges: AC Privilege: Length

Answer 60

In CA, Privilege ends when deceased client’s estate distributed and executor discharged

Question 61

Testimonial Privileges: AC Privilege: Corporations

Answer 61

Within privilege if:
(1) the employee/agent is the natural person to speak to the lawyer on behalf of the corporation in the matter (for example, the corporation’s in-house counsel or CEO), or
(2) the employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened.
“Mere witness” not within AC privilege

Question 62

Testimonial Privileges: AC Privilege: Exceptions

Answer 62

(1) multiple parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another in subsequent litigation;
(2) the attorney’s services were sought to further a crime or fraud;
(3) the communication relates to alleged breach of duty between attorney and client;
(4) the client puts the legal services at issue in the case; or
(5) the communication is relevant to an issue between parties claiming through the same deceased client.

Additionally, in California, the privilege does not apply where the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.

Question 63

Testimonial Privileges: Physician Patient Privilege

Answer 63

Federal courts recognize a psychotherapist/social worker-patient privilege but not a general physician-patient privilege. (Remember, however, that MBE questions occasionally assume the existence of a physician-patient privilege under the majority state rule.)

In California, both privileges exist. The California physician-patient privilege applies to a communication with a licensed physician, or someone the patient reasonably thinks is a licensed physician, or staff, for the purpose of diagnosis or treatment

The California psychotherapist-patient privilege covers a wide range of mental health workers (including social workers, counselors, school psychologists, and mental health nurses, assistants, and interns).

Question 64

Testimonial Privileges: Physician Patient Privilege: Exceptions

Answer 64

(1) the patient puts their condition in issue (as in a personal injury lawsuit);
(2) the professional services were sought to aid in a crime or fraud, or to escape capture after a crime or tort;
(3) the case alleges a breach of duty between a patient and the psychotherapist/physician (as in a malpractice lawsuit); and
(4) the communication is relevant to an issue between parties claiming through the same deceased patient.

Question 65

Testimonial Privileges: Physician Patient Privilege: CA Exceptions

Answer 65

The psychotherapist-patient privilege does not apply if:
(1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is necessary to end the danger;
(2) the patient is a child under the age of 16 and the psychotherapist reasonably believes that the child has been the victim of a crime and disclosure is in the best interest of the child; or
(3) the psychotherapist has been appointed by the court.

The physician-patient privilege is not applicable in criminal cases.

Neither privilege is applicable:
(1) to information that the psychotherapist/physician is required to report to a public office (for example, gunshot wounds and some communicable diseases); or
(2) in competency proceedings.

Question 66

Testimonial Privileges: Spouses

Answer 66

Spousal testimonial privilege applies in both civil and criminal cases in CA

Confidential marriage communications:
The California privilege extends to registered domestic partners.

Question 67

Procedural Considerations: Judicial Notice of Facts

Answer 67

Judge is bound by rules of evidence when making determination in CA court

California recognizes an exception to the request rule:
Even if not requested, the court must take judicial notice of matters of generalized knowledge that are universally known.

Question 68

Procedural Considerations: Conclusiveness

Answer 68

In California, a judicially noticed fact is conclusive in both criminal and civil cases.
This means that in both criminal and civil cases, the court instructs the jury that it must accept the judicially noticed fact as conclusive.