California Evidence Distinctions

Question 1

What is the California equivalent of FRE 403?

Answer 1

CEC 352

Question 2

What evidence does Prop 8 admit?

Answer 2

All relevant evidence in a criminal proceeding

Question 3

What are the exceptions to Prop 8?

Answer 3

Hearsay
Privilege
Character Evidence to prove conduct
Confrontation Clause issues
Evidence barred by CA Rape Shield Statute
Secondary Evidence Rule
CEC 352 balancing

Question 4

To what questions do California evidence rules apply in federal diversity cases?

Answer 4

Questions of
privilege
competency
effect of presumptions

Question 5

What is the distinction between federal and California law regarding relevance?

Answer 5

In California, evidence must concern a disputed fact to be considered relevant.

If all parties stipulate to the fact, it is not relevant.

Question 6

What is the distinction regarding subsequent remedial measures?

Answer 6

admissible to show design defect in strict liability cases in CA

Question 7

What is the distinction regarding offers to pay medical expenses?

Answer 7

CA excludes accompanying admissions of fact

Question 8

Under which evidence rules is immigration status admissible?

Answer 8

federal rules only

Question 9

What prior bad acts are admissible in CA (criminal) cases but not federal cases?

Answer 9

domestic violence
elder abuse

Question 10

When are defendant’s prior bad acts admissible in federal court? In California?

Answer 10

fed: criminal and civil cases
CA: crimes of moral turpitude in criminal cases (prop 8)

Question 11

When may prosecutors rebut evidence of victim’s bad character with evidence of defendant’s bad character?

Answer 11

fed: any trait of victim’s bad character
CA: only on trait of violence

Question 12

Can prosecution admit evidence of victim’s good character in a homicide/self-defense case?

Answer 12

fed: yes
CA: only if defendant initiates

Question 13

When are specific acts admissible to prove victim’s character?

Answer 13

fed: only to impeach on cross after D initiates
CA: whenever D initiates

Question 14

What is the distinction re: witness competency?

Answer 14

CA: witness must understand duty to tell truth

Question 15

What is the standard for admitting scientific evidence in CA?

Answer 15

general acceptance in the field

Question 16

When are learned treatises admissible in CA?

Answer 16

only re: “facts of general notoriety or interest” (rarely)

Question 17

When can witness credibility be bolstered?

Answer 17

CA: Prop 8 – any time relevant in criminal case
fed: never

Question 18

What is the distinction re: prior inconsistent statements?

Answer 18

fed: impeachment only unless under oath
CA: admissible for all purposes

Question 19

Distinctions re: prior felony convictions

Answer 19

CA: must be crime of moral turpitude;
courts have discretion to exclude where feds don’t

Question 20

Distinctions re: prior misdemeanor convictions

Answer 20

inadmissible in CA except criminal cases where prop 8 admits crimes of moral turpitude

Question 21

Distinctions re: age of prior felony convictions

Answer 21

fed: 10+ years inadmissible
CA: no rule, CEC 352 balancing

Question 22

Distinction re: vicarious party admissions

Answer 22

fed: nonhearsay
CA: hearsay exception for civil cases only

Question 23

Distinctions re: unavailable declarants

Answer 23

CA
no partial memory loss
fear renders witness unavailable

Question 24

Distinctions re: statements against interest

Answer 24

CA
no corroboration requirement
statements against social interest admissible

Question 25

Distinctions re: dying declarations

Answer 25

CA: declarant must actually die

Question 26

When is a statement of a kidnapped or murdered declarant admissible?

Answer 26

**fed** catch-all **CA** declarant unavailable, serious felony, unavailability caused/aided by defendant, for purpose of preventing arrest/prosecution

Question 27

When is a statement of physical threat or injury admissible?

Answer 27

**fed** catch-all **CA** declarant unavailable, contemporaneous with threat/injury, written or made to LEO/medical personnel, under untrustworthy circumstances

Question 28

Distinctions re: present sense impressions

Answer 28

CA: only applies to declarant's own conduct

Question 29

When are statements made for medical diagnosis/treatment admissible in CA?

Answer 29

only where declarant is minor and statement describes child abuse or neglect

Question 30

What is different about the business records (hearsay) exception in CA?

Answer 30

CA rule doesn't refer to **opinions/diagnoses** **simple** opinions/diagnoses generally **admissible** (e.g. broken leg) **complex** opinions/diagnoses generally ***inadmissible*** (e.g. PTSD) **records custodian** must testify

Question 31

How does CA's public records (hearsay) exception differ from the federal exception?

Answer 31

CA exception is **broader**, admitting records **within scope **of employee's duties made **at or near time** of matters described if **trustworthy**

Question 32

How are felony judgments treated for hearsay purposes in CA?

Answer 32

only admissible in **civil cases** *but* public records exception admits certified copy of judgment in both civil & criminal

Question 33

How old must a document be to qualify as *ancient* under CA rules?

Answer 33

30 years

Question 34

What documents are *not* self-authenticating in CA?

Answer 34

trade inscriptions certified business records

Question 35

Describe the secondary evidence rule

Answer 35

duplicates & written secondary evidence are admissible oral testimony to describe writing inadmissible w/out a valid excuse

Question 36

What is the difference in how courts determine preliminary issues of fact?

Answer 36

In CA, judge is bound by rules of evidence

Question 37

What is the difference re: judicial notice of facts?

Answer 37

In CA, **court must take notice** of matters of *generalized knowledge* that are *universally known*; considered **conclusive** in both civil and criminal cases.

Question 38

When does the spousal testimony privilege apply in CA? ## Footnote b

Answer 38

Both criminal & civil cases Domestic partners included

Question 39

When does physician-patient privilege apply in CA?

Answer 39

civil cases only *not* applicable if physician is required to report *not* applicable in incompetency proceedings

Question 40

When does attorney-client privilege terminate?

Answer 40

fed: never CA: death of client (estate distributed & executor discharged) ## Footnote `

Question 41

When does attorney-client privilege *not* apply in CA?

Answer 41

disclosure necessary to prevent death or substantial bodily harm

Question 42

When does therapist-patient privilege *not* apply in CA?

Answer 42

criminal cases physician required to report patient is danger to self or others patient is child (under 16) crime victim therapist appointed by court incompetency proceedings