Evidence Distinctions Flashcards
Subsequent Remedial Measures
CA-not applicable in strict liability cases, these measures can used as evidence
Negotiations
Mediation are subject to more strict confidentiality rules
Offers to Pay Medical Expenses
FED-admissions of fact in conjunction with offers to pay—admissible
CA-those are also inadmissible
Plea Discussions
All of these plea discussion and related things are inadmissible according to the FRE
CA-Prop 8 maybe makes this different? Unclear but remember the unfair prejudice balancing test
Expressions of Sympathy
CA-expressions of sympathy aren’t admissible, but statements of guilt in conjunction with them are
Evidence of Immigration Status
CA-not relevant for personal injury or wrongful death
Evidence of Hospital Morbidity Statistics
CA-not admissible in civil cases
Act of Prostitution
CA-if someone witnessed a crime or was a victim, the fact that they were engaged in an act of prostitution isn’t admissible against them in a separate criminal prosecution for prostetution
Sexual Assault
Federal Rules say you can use a person’s past sexual assault behavior or child molestation to prove that they acted in conformity with that past behavior
CA-doesn’t work in CA, you can’t use that in civil cases too
Defendant’s Character
Defendant can open the door to prove defendant’s conduct
CA-doesn’t change anything
When Prosecution Can Initiate
In criminal cases, in both CA and under the fed rules you can use other acts of sexual assault or child molestation as evidence that they acted in accordance with this behavior
CA-also can do the same thing for domestic violence or elder abuse
Federal law says that when the defense offers the victim’s bad character then you can offer the defendant’s character for the same bad trait
CA-it’s only for the character of violence
Cross examination-specific instances of defendant’s character are admissible for the limited purpose of impeaching those instances
Victim’s Character
The defendant has to be the first one to introduce evidence of the victim’s character, they can try to prove the victim’s conduct and prop 8 doesn’t change this in CA
Fed rules, you offer the idea that the victim attacked first in a homicide case, the prosecution can offer up evidence of a peaceful character
CA-doesn’t have equivalent rule
Victim Specific Conduct
Under federal rules, d can open door to victim’s character and they can
Offer reputation or opinion evidence about the victim
Cross examine the d’s witness about specific instances of the victim’s character, just in this instance
CA-specific acts are admissible to prove the victim’s character, once the defendant has opened the door it stays open and the victim’s character can be proven in whatever way
Sexual Assault Victim’s Past Behavior
Fed rules say the sexual history of the victim are inadmissible
CA-sexual history only admissible when it was with the defendant—manner of dress is also inadmissible and Prop 8 doesn’t apply to the rape-shield law
Competency of Witnesses
CA-in addition to the need to tell the truth and testifying from their own personal knowledge, in CA you also need to understand your own legal duty to tell the truth
Hypnosis
CA-can only testify to what you knew about before hypnosis and in CA it has to be in writing from before the hypnosis
Dead Man Acts
Can’t testify to personal communication between you and the deceased when you’re an interested party
CA-don’t have it
Witness Recollection
When your recollection is refreshed on the stand the opposing party has a right to have it produced and introduced
CA-if it’s refreshed before they’re on the stand then the same rule applies
Expert Testimony
Daubert standard-multi-factored
Whether the methodology has been tested
Whether it was subject to peer review
Potential error rate
Generally accepted in the relevant field
Controlling standards
CA-Kelly-Frye
Whether it is generally accepted in the field
But also doesn’t apply to non-scientific opinions and medical opinions
This pertains to relevance—so it doesn’t impact prop 8 which just says you have to admit relevant evidence
Learned Treatise
If it’s from a scientific publication it can be used to prove facts or cross examine
CA-only facts of general notoriety or interest—like maps and stuff or books of history or art, generally only cross of an expert witness but in CA it’s almost never admissible
Sequestration of Witnesses
Fed-must grant a motion to sequester
CA-has discretion
Bolstering Witnesses
Fed says you can’t bolster witnesses unprompted
CA-if it’s relevant you can bring it cause of prop 8, both the prosecution and defendant can bolster the credibility of the witness before it’s been attacked
Impeachment with Prior Inconsistent Statements
Fed-if a prior inconsistent potentially hearsay statement was given under oath, it’s an exclusion; if it’s only being offered to impeach it’s not hearsay
CA-it’s an exception for all prior inconsistent statements, even if they weren’t made under oath
Impeachment with Prior Felony Convictions
Fed-if it was a crime of dishonesty, there’s no discretion and it’s definitely admissible, no balancing test
Fed-can be admitted, it’s about the 403 balancing test, but if it’s the defendant there’s a different balancing test
CA-crimes of moral turpitude are admissible, but they are all subject to 352 balancing test
Not involving moral turpitude they are inadmissible and Prop 8 doesn’t change it cause it’s not relevant
Crime of moral turpitude-lying, violence (not simple assault), theft, extreme recklessness, or sexual misconduct
Civil cases-just the fact of being convicted but in civil the facts surrounding it can be admissible too cause of prop 8
