Evidence CA: General

Question 1

WHEN DO YOU APPLY CALIFORNIA LAW?

Answer 1

ONLY ON ESSAY. Do not apply California evidence law on the MBE, where the Federal Rules of Evidence (“Federal Rules”) apply. Apply California law only on an essay and only if the essay question directs you to do so. If there are no directions, apply the Federal Rules on the essay.

Question 2

CALIFORNIA EVIDENCE CODE Application:

Fed diversity in what?

Answer 2

The California Evidence Code (“CEC”) applies in all civil and criminal cases in California state courts, except for grand jury proceedings.
Additionally, in a federal diversity case, the federal judge must apply the CEC to questions of privilege, competency, and the effect of presumptions.

Question 3

Prop 8: difference in criminal cases (discussed below) created by the California Constitution.

Answer 3

(essay that asks you to apply California law and concerns a criminal case), “Right to Truth-in-Evidence” amendment to the California Constitution (Proposition 8, hereinafter “Prop. 8,” also known as the “Victim’s Bill of Rights”).

Makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC. The California Constitution overrules the CEC.

BUT has EXCEPTIONS

WRITE: Under Proposition 8 of the California Constitution (“Prop. 8”), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under CEC 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

Question 4

Exceptions to Prop. 8. (seven exceptions)

Answer 4

These objections are not overruled by Prop. 8 (in other words, the CEC rules apply and Prop. 8 will not affect the outcome):
• Exclusionary rules under the U.S. Constitution, such as the Con- frontation 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 5

CEC 352

Answer 5

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.).
Even if evidence is relevant, the judge has discretion to exclude it if its probative value is substan- tially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, waste of time, undue delay, or needless presentation of cumulative evidence.

Question 6

Approach to Applying California Law on Essays

Answer 6

(1) Raise all objections under the CEC.
(2) For each objection, mention if Prop. 8 overrules the objection. (Is the evidence relevant? Does one of the exceptions to Prop. 8 apply?)
(3) If the evidence seems admissible under Prop. 8, balance under CEC 352.

Question 7

Relevance

Answer 7

evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
In California, the fact of consequence must also be in dispute.

Question 8

Under the Federal Rules, this is called Rule 403. In California, this is called …

Answer 8

Under the Federal Rules, this is called Rule 403. In California, this is called CEC 352.

Question 9

Public Policy Exclusions that are CALIFORNIA ONLY

(4). SHIP

Answer 9

1. EXPRESSIONS OF SYMPATHY IN CIVIL CASES (CALIFORNIA ONLY).
2. EVIDENCE OF IMMIGRATION STATUS IN CERTAIN CIVIL CASES (CALIFORNIA ONLY).
3. HOSPITAL QUALITY RECORDS IN CIVIL CASES (CALIFORNIA ONLY).
4. VICTIM’S OR WITNESS’S ACT OF PROSTITUTION (CALIFORNIA ONLY).

Question 10

CA Public Policy Exclusions: SUBSEQUENT REMEDIAL MEASURES

Admissible to show:
INadmissible to show:

Answer 10

Under federal and California law, evidence of safety measures or repairs after an accident is inadmissible to prove negligence or culpable conduct.
Under the Federal Rules, such evidence is also inadmissible to prove a defect in a product or its design in a products liability action based on a theory of strict liability.
In other words, the California distinction is that this public policy exclusion does not apply in strict liability cases. It applies in negligence cases only.

Question 11

The California distinction for SUBSEQUENT REMEDIAL MEASURES is that….

Answer 11

California distinction is that this public policy exclusion does not apply in strict liability cases. It applies in negligence cases only.

Question 12

CA Public Policy Exclusions: CIVIL SETTLEMENTS AND SETTLEMENT NEGOTIATIONS

Answer 12

Under federal and California law, evidence of settlements, offers to settle, and statements made during settlement negotiations is inadmissible to prove liability or fault.

In California, statements made in connection with mediation proceedings (a type of settlement negotiation) are subject to stricter confidentiality rules.

With limited exceptions (such as when all parties consent to disclosure), statements made and writings prepared in connection with a mediation or mediation consultation are inadmissible in civil cases.

This includes communications and documents made outside the mediation as long as they were made for the purpose of the mediation.

Question 13

In CA, statements made and writings prepared in connection with a mediation or mediation consultation are…

Answer 13

With limited exceptions (such as when all parties consent to disclosure), statements made and writings prepared in connection with a mediation or mediation consultation are inadmissible in civil cases. This includes communications and documents made outside the mediation as long as they were made for the purpose of the mediation.

Question 14

PAYMENTS OF AND OFFERS TO PAY MEDICAL EXPENSES

Answer 14

Under federal and CA law, evidence of payments or offers to pay medical or similar expenses is inadmissible when offered to prove liability for the injuries in question.

Under the Federal Rules, admissions of fact accompanying such payments and offers don’t fall within this public policy exclusion and are generally admissible. Such admissions are only excluded when made as part of a settlement offer (because they would then fall under the more restrictive rule for settlements).

In California, admissions of fact made in conjunction with payments or offers to pay medical expenses are inadmissible.

Question 15

PLEA DISCUSSIONS

Answer 15

Offers to plead guilty, withdrawn guilty pleas, pleas of nolo contendere, and statements of fact made during plea discussions are inadmissible under both the Federal Rules and the CEC. But does Prop. 8 make this admissible in California? The law is unclear. On an essay, raise the issue and mention that, even if Prop. 8 applies to such evidence, the court still may exclude it for unfair prejudice.

Question 16

EXPRESSIONS OF SYMPATHY IN CIVIL CASES (CALIFORNIA ONLY)

Accompanying stmts of fault?

Answer 16

In California, expressions of sympathy relating to the pain, suffering, or death of an accident victim are inadmissible in civil cases. However, statements of fault made in connection with such an expression are not excluded. No federal rule like this.

Question 17

EVIDENCE OF IMMIGRATION STATUS IN CERTAIN CIVIL CASES (CALIFORNIA ONLY)

which cases?

Answer 17

In California, evidence of a person’s immigration status is not admissible or discoverable in civil actions for personal injury or wrongful death. In all other proceedings, the judge must hold an in camera hearing to determine admissibility before disclosure.

Question 18

HOSPITAL QUALITY RECORDS IN CIVIL CASES (CALIFORNIA ONLY)

Answer 18

California recognizes public policy exclusions that make the following evidence inadmissible in civil cases:
• Records of hospital morbidity or mortality studies (meaning, studies that keep track of how many patients suffered complications or died)
• Certain proceedings and records of organized hospital commit- tees and peer review bodies
There are no comparable federal rules of evidence.

Question 19

VICTIM’S OR WITNESS’S ACT OF PROSTITUTION (CALIFORNIA ONLY)

Answer 19

In California, when a person was a victim of a certain crime, or witnessed such a crime, evidence that the person had engaged in an act of prostitution at or around the same time is inadmissible against them in a separate criminal prosecution for prostitution.
The qualifying crimes are: any serious felony, assault, domestic violence, extor- tion, human trafficking, sexual battery, and stalking.
There is no comparable federal rule of evidence.

Question 20

Character Evidence IN CIVIL CASES Generally

Answer 20

Under federal and California law, character evidence is inadmissible to prove conduct in conformity (propensity) in civil cases.

Question 21

Character Evidence IN CIVIL CASES exception: When, if ever is it admissible to prove defendant’s conduct in such a case? (CA and FED)

Answer 21

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 22

IN CIVIL CASES: defendant’s prior acts of sexual assault or child molestation

Answer 22

admissable in Federal, BUT NOT admissable in CA.

Question 23

Defendant’s Character in Criminal Case

Answer 23

Under federal and California law, the defendant is permitted to open the door by introducing evidence of their own good character for a pertinent trait, in the form of reputation or opinion testimony. The prosecution cannot initiate the use of character evidence to prove the defendant’s conduct. The prosecution can only rebut after the defendant opens the door. (Prop. 8 does not change this rule in California.).
BUT EXCEPTIONS!

Question 24

Defendant’s Character in Criminal Case: EXCEPTIONS: When can the prosecution can still introduce evidence of the defendant’s bad character (without D opening the door)?

Pros’ Rebuttals?

Answer 24

Even if D has not introduced evidence of their own good character, the prosecution can still introduce evidence of the defen- dant’s bad character to prove their conduct in the following situa- tions:
(1) Under federal and CA law, in a prosecution for sexual assault or child molestation, the prosecution may offer evidence that the D committed other acts of sexual assault or child molestation. (While CA does not recognize this exception in civil cases, they do recognize it in criminal cases.)
(2) 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
(3) REBUTTALS: 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 (a narrower version of #3).

Question 25

CA: defendant’s prior acts of sexual assault or child molestation

Answer 25

Admissable in CRIMINAL, NOT ADMISSABLE IN CIVIL.

Question 26

CA: What E of D’s prior acts could be admitted in a CIVIL case?

Answer 26

None. in California, there are no exceptions to the general rule that character evidence is inadmissible to prove conduct in civil cases.

Question 27

CA: What E of D’s prior acts could be admitted in a CRIMINAL case?

Answer 27

in a prosecution for sexual assault or child molestation, the prosecution may offer evidence that the D committed other acts of sexual assault or child molestation. ALSO, 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

Question 28

FED (NOT CA): What E of D’s prior acts could be admitted in a CIVIL case?

Answer 28

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.

Question 29

FED (NOT CA): What E of D’s prior acts could be admitted in a CRIMINAL case?

Answer 29

in a prosecution for sexual assault or child molestation, the prosecution may offer evidence that the D committed other acts of sexual assault or child molestation.

Question 30

Defendant’s Character in Criminal Case: Character Evidence Rebuttal.

Answer 30

(3) 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.
(4) 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 (a narrower version of #3).

Question 31

Cross-Examination of Defendant’s Character Witness

Answer 31

BOTH FED and CA. 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 defen- dant’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.

Question 32

What type of E is allowed on direct regarding Character Evidence

Answer 32

Rep and opinion

Question 33

VICTIM’s Character in CRIMINAL Case

Answer 33

The prose- cution cannot be the first to offer evidence of the victim’s character to prove the victim’s conduct (the trial begins with the door closed). (Prop. 8 does not change this rule in California.).
The defendant can introduce evidence of the victim’s character for a pertinent trait to prove the victim’s conduct.

With EXCEPTIONS:
- Homicide Exception (FEDERAL ONLY, NOT CA)
- Admissibility of Specific Instances of Victim’s Conduct

Question 34

VICTIM’s Character in CRIMINAL Case: Homicide Exception (FEDERAL ONLY)

Answer 34

Under the Federal Rules, in a homicide case, if the D 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 35

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

Answer 35

D can initiate evidence of the victim’s character to prove the victim’s conduct, thus opening the door to rebuttal from the prosecution.
FED: The defendant can introduce evidence of the victim’s character in the form of reputation or opinion. If the door is opened, the prosecution can introduce reputation and opinion evidence of the victim’s character to prove the victim’s conduct. Additionally, the prosecution can cross-examine the defendant’s character witness about specific instances of the victim’s conduct. specific instances are not admissible to prove the victim’s character, but are allowed on cross-examination of the character witness for the limited purpose of attacking the character witness’s direct examination testimony.
CA: In California, specific acts are admissible to prove the victim’s character on both direct and cross-examination. Thus, D 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 36

Specific instances of conduct to prove victims Character

Answer 36

Unlike fed law, CA ALLOWS evidence of V’s specific instances of conduct to prove V’s character. In CA, D can do it on direct and once door opened, pros can rebut with it.

Question 37

Sexual Assault Victim’s PAST behavior

Answer 37

FED: in any civil or criminal proceeding involving alleged sexual misconduct, E offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible, subject to certain exceptions.
CA: CA recognizes a similar statute that applies only in criminal sexual assault cases. The statute provides that opinion evidence, reputation evidence, and specific acts evidence of the victim’s sexual conduct are all inadmissible to prove the victim’s consent, UNLESS the V’s sexual conduct was with the defendant. Additionally, evidence of the victim’s manner of dress at the time of the offense is inadmissible. (Prop. 8 does not apply to evidence that is barred by California’s rape-shield statute.)
If the prosecution introduces evidence of the victim’s prior sexual conduct (for example, by asking the victim or another witness about it), the defendant is permitted to cross-examine the witness who gave the evidence and can rebut only the specific evidence that was given.

Question 38

CA’s rule about Sexual Assault Victim’s PAST behavior

Answer 38

CA:
- Applies only in criminal cases
- Excludes Evidence of V’s sexual conduct to prove consent, unless conduct was with Defendant
- Excludes V’s manner of dress.

Question 39

DEFENDANT’S SIMILAR MISCONDUCT IN CERTAIN CASES

Answer 39

FED: Under the Federal Rules, evidence of a defendant’s other acts of sexual assault or child molestation is admissible in any criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes.
CA: 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 40

COMPETENCY OF WITNESS

Answer 40

BOTH: 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.
CA: In California, the witness also must understand their legal duty to tell the truth.

Question 41

California Safeguards for Hypnotized Testimony

Answer 41

A witness who has undergone hypnosis for the purpose of restoring their memory is only competent to testify about matters that they recalled and related to others prior to the hypnosis.
Additionally, in criminal cases, the CEC imposes additional requirements, including: (1) the substance of the prehypnotic memory must have been preserved in a writing or recording prior to the hypnosis; (2) the hypnosis must have been video recorded; and (3) the hypnosis must have been done outside of the presence of law enforcement, the prosecution, and the defense.

Question 42

Dead Man Acts

Answer 42

California does not have a Dead Man Act.

Question 43

REFRESHINGWITNESS’SRECOLLECTION— SAFEGUARDS AGAINST ABUSE

Answer 43

California law differs on a fairly technical point as to whether an adverse party can compel production of the writing.
Under the Federal Rules, if the witness refreshed their memory while on the stand, an adverse party is entitled to have the writing produced at trial and to use and introduce relevant portions. But if the witness refreshed their memory before trial, it is within the court’s discretion to require production.
In California, it is immaterial whether the refreshing was done before trial or during trial—if the opponent asks for the writing to be produced, the proponent must produce it (unless they do not have it and cannot obtain it by subpoena or other means).

Question 44

Determining Reliability

Answer 44

Under federal and California law, an expert witness’s opinion must be based on reliable principles and methods that are reliably applied to the facts.
Federal and California law differs with respect to the determination of reliability of scientific opinions:

Question 45

Determining Reliability: Federal Daubert-Kumho Standard

Answer 45

Federal courts apply the Daubert-Kumho standard. The court takes a flexible approach and can consider various factors when determining the reliability of scientific and non-scientific opinions, such as: whether the expert’s theory or methodology has been tested; whether it has been subject to peer review and publication; its known or potential error rate; the existence and maintenance of standards controlling its operation; and whether it is generally accepted in the relevant field. Also common sense factors.

Question 46

Determining Reliability: California Kelly-Frye Standard

Answer 46

California courts apply the Kelly-Frye general acceptance standard. The reliability of scientific opinions is determined by a single factor: the opinion must be based on principles that are generally accepted by experts in the field. (This standard is not altered by Prop. 8 because it is a standard of relevance. Remember, Prop. 8 only makes evidence admissible if it is relevant.) Kelly-Frye does not apply to non-scientific opinions and medical opinions, the reliability of which is based on the facts and circumstances of the case.

Question 47

Learned Treatise Hearsay Exception

Answer 47

FED: Under the Federal Rules, 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.
CA: 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 48

Learned Treatise Hearsay Exception IN CA is…

Answer 48

Almost never applicable.

Question 49

EXCLUSION AND SEQUESTRATION OF WITNESSES

Answer 49

FED: Under the Federal Rules, if a party makes a motion to sequester a witness, the judge must grant the motion (but must not exclude witnesses in the exempted categories).
CA: In California, the judge has discretion to grant or deny a party’s motion to sequester (but must not exclude witnesses in the exempted categories).

Question 50

ACCREDITING OR BOLSTERING

Answer 50

FED: Under federal law, with certain exceptions, a party is not permitted to bolster the testimony of their witness until the witness has been impeached.
CA: 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 51

IMPEACHMENT WITH PRIOR INCONSISTENT STATEMENTS—WHEN ADMISSIBLE AS SUBSTANTIVE EVIDENCE

Answer 51

A prior inconsistent statement is not hearsay if offered only to impeach. However, there is a hearsay problem when the statement is offered for the truth of the facts asserted. Federal and California law address this differently.
FED: hearsay exclusion for certain prior inconsistent statements of a testifying witness. If the witness’s prior inconsistent statement was given under oath at a trial or deposition, it is not hearsay. (Otherwise, the statement is hearsay if offered to prove the facts asserted and inadmissible unless it falls within some hearsay exception.)
There are 2 important California differences:
- Prior inconsistent statements of a testifying witness are catego- rized as a hearsay exception, not an exclusion.
- The exception extends to all prior inconsistent statements, even if they were not made under oath. But must be on the stand testyifying now.

Question 52

Felony Convictions Under Federal Rules

Answer 52

Under the Federal Rules, convictions for felonies involving dishonesty or false statement (meaning, “crimen falsi” crimes like perjury, forgery, fraud) are admissible (unless they are too old, as discussed below). The court has no discretion to exclude such convictions (meaning, the court doesn’t balance unfair prejudice against probative value).
Convictions for felonies not involving dishonesty or false statement are also admissible, but the court has discretion to exclude them.
The balancing test depends on who the witness is; for most witnesses, the court uses the Rule 403 balancing test, but a different balancing test is used in a criminal case where the witness is the accused.

Question 53

in a criminal case where the witness is the accused….

Answer 53

Balancing test: PV outweighs unfair prejudice

Question 54

Felony Convictions in California

Answer 54

In California, all felonies involving “moral turpitude” are admissible, but the court has discretion to exclude them under CEC 352. Felonies not involving moral turpitude are inadmissible in California. (Prop. 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.)

Question 55

Felony Convictions in California- What’s a Crime of Moral Turpitude?

Answer 55

“Crimes of moral turpitude” refers to crimes of lying, violence (but not simple assault), theft, extreme recklessness, or sexual misconduct. Crimes consisting of merely negligent or unintentional acts (involuntary manslaughter) are not crimes of moral turpitude.

Question 56

Felony Convictions in California- Form of Impeachment

Answer 56

The California Supreme Court has ruled on the form of impeachment with prior felony convictions.
In civil cases, the witness may only be impeached with the fact that they have been convicted of the felony.
But in criminal cases, Prop. 8 makes evidence of the circumstances underlying the crime admissible to impeach the witness if the proponent demonstrates that the evidence has any tendency to disprove credibility.

Question 57

Prior Misdemeanor Convictions - FEDERAL - Form of Impeachment

Answer 57

Under the Federal Rules, all convictions for misdemeanors involving dishonesty or false statement are admissible. Again, the court has no discretion to exclude these convictions for crimes of dishonesty or false statement. Convictions for misdemeanors that do not involve dishonesty or false statement are inadmissible.

Question 58

Prior Misdemeanor Convictions - CALIFORNIA - Form of Impeachment

Answer 58

In California, it depends on whether the conviction is offered in a criminal or civil case:
- CA Criminal cases: Misdemeanors involving moral turpitude ADMISSABLE (due to prop 8). [The CEC provides that misdemeanor convictions are inadmissi- ble. However, because of Prop. 8, convictions for misdemeanors involving moral turpitude can be admitted in criminal cases, subject to the court’s balancing of probative value versus unfair prejudice under CEC 352.]
- CA CIVIL cases: INADMISSABLE. Because Prop. 8 only applies to criminal cases, the CEC rule con- trols in civil cases and this means that misdemeanor convictions are inadmissible in civil cases.

Question 59

Older Convictions - FEDERAL

Answer 59

Under the 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).

Question 60

Older Convictions - CALIFORNIA

Answer 60

California doesn’t have a specific rule for old convictions. However, California courts always have discretion to exclude a conviction offered for impeachment under CEC 352 (NORMAL BALANCING), and this permits consideration of any factor bearing on probative value, including the age of the conviction. Burden on objecting party (Defendant).
- No timing rule.
- Age may be considered as part of 352 balancing.

Question 61

normal 403 balancing

Answer 61

probative value is substantially outweighed by the danger of unfair prejudice. (meaning unfair prejudice substantially outweighs PV).

Question 62

Special balancing

Answer 62

probative value substantially outweighs its prejudicial effect (a tough balancing test to pass).

Question 63

Easier to use older conviction to impeach under Fed or CA law?

Answer 63

Easier under CA law, they use normal balancing and burden is on D to object. Fed uses special balancing.

Question 64

important California distinctions: (3)

Answer 64

(1) to be admissible, the conviction must always be for a crime involving moral turpitude;
(2) misdemeanor convictions are admissible in criminal cases only; and
(3) the court always has discretion to exclude a qualifying conviction.

Question 65

IMPEACHMENT WITH other BAD ACTS (Not criminal convictions) - FEDERAL

Answer 65

Under the Federal Rules, a witness’s bad acts involving untruthful- ness (in other words, acts of lying) can be admissible even if those acts did not lead to a conviction. The impeachment must be done on cross-examination only, extrinsic evidence of the bad act is inadmis- sible, and the evidence is subject to Rule 403 balancing.

Question 66

Under federal law, the only type of misconduct evidence to impeach a witness is…

Answer 66

evidence of lies.

Question 67

IMPEACHMENT WITH other BAD ACTS (Not criminal convictions) - CALIFORNIA

Answer 67

In California, the situation is similar to misdemeanor convictions above:
• CA CRIMINAL: Acts of moral turpitude admissable due to prop 8. [Impeachment with bad acts that did not lead to a conviction is not permitted by the CEC. However, Prop. 8 makes acts of moral turpitude admissible for impeachment in criminal cases. When admissible, both cross-examination and extrinsic evidence are permitted, subject to balancing under CEC 352.]
• CA CIVIL: INADMISSABLE. Because Prop. 8 only applies in criminal cases, the CEC rule controls in civil cases and this means that impeachment with bad acts is not permitted in civil cases.

Question 68

REHABILITATION WITH PRIOR CONSISTENT STATEMENT - FEDERAL

Answer 68

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.

Question 69

REHABILITATION WITH PRIOR CONSISTENT STATEMENT - CALIFORNIA

Answer 69

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.