California Prop 8

Question 1

What is California’s prop 8?

What is the effect?

What are the exceptions (8)?

Answer 1

Prop 8 = “victim’s bill of rightS”

General rule –> in CRIMINAL trials in CA, ALL RELEVANT EVIDENCE is admissible

EFFECT –> this would have the effect of allowing in all evidence subject to relevancy. However, there have been a number of judicial exceptions

Judicial Exceptions:
1. MUST exclude evidence that would violate US constitution
Examples –> Miranda, testimonial hearsay that would violate confrontation clause

2. Privileges that existed in 1982:
   - attorney client and other professional privileges
   - spouse-witness privilege
   - marital communications privilege
3. court may not hold member of media in contempt for refusing to reveal confidential source
4. Rule against hearsay is exempt
5. CEC 352 (counterpart to Fed 403) gives judge DISCRETION to exclude evidence if its PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by its dangers
6. CA’s rape-shield statutes (CEC 782 and 1103) are exempt from prop 8
7. Secondary evidence rule (CA’s version of best evidence rule) is exempt from prop 8
8. Rule prohibiting P from offering evidence of D’s or victim’s character before D opens the door is exempt from prop 8

Question 2

What is the essay exam approach for prop 8?

Answer 2

1. determine if it’s a CRIMINAL case in CA STATE court
2. ask whether either party has offered a piece of evidence that would be excluded under ordinary rules. If so, make a note in essay. Then move to next step.
3. Then ask yourself if it falls within one of the exceptions of prop 8. If it does, state that prop 8 does not apply, and proceed to the ordinary rule
4. If evidence DOES NOT fall within exempted category, then explain that evidence IS admissible due to prop 8. HOWEVER, continue to discuss whether judge should nevertheless exclude the evidence under CEC 352 under grounds that its dangers SUBSTANTIALLY OUTWEIGH its probative value