Evidence Distinctions

Question 1

Subsequent Remedial Measures

Answer 1

CA-not applicable in strict liability cases, these measures can used as evidence

Question 2

Negotiations

Answer 2

Mediation are subject to more strict confidentiality rules

Question 3

Offers to Pay Medical Expenses

Answer 3

FED-admissions of fact in conjunction with offers to pay—admissible
CA-those are also inadmissible

Question 4

Plea Discussions

Answer 4

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

Question 5

Expressions of Sympathy

Answer 5

CA-expressions of sympathy aren’t admissible, but statements of guilt in conjunction with them are

Question 6

Evidence of Immigration Status

Answer 6

CA-not relevant for personal injury or wrongful death

Question 7

Evidence of Hospital Morbidity Statistics

Answer 7

CA-not admissible in civil cases

Question 8

Act of Prostitution

Answer 8

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

Question 9

Sexual Assault

Answer 9

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

Question 10

Defendant’s Character

Answer 10

Defendant can open the door to prove defendant’s conduct

CA-doesn’t change anything

Question 11

When Prosecution Can Initiate

Answer 11

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

Question 12

Victim’s Character

Answer 12

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

Question 13

Victim Specific Conduct

Answer 13

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

Question 14

Sexual Assault Victim’s Past Behavior

Answer 14

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

Question 15

Competency of Witnesses

Answer 15

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

Question 16

Hypnosis

Answer 16

CA-can only testify to what you knew about before hypnosis and in CA it has to be in writing from before the hypnosis

Question 17

Dead Man Acts

Answer 17

Can’t testify to personal communication between you and the deceased when you’re an interested party
CA-don’t have it

Question 18

Witness Recollection

Answer 18

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

Question 19

Expert Testimony

Answer 19

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

Question 20

Learned Treatise

Answer 20

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

Question 21

Sequestration of Witnesses

Answer 21

Fed-must grant a motion to sequester

CA-has discretion

Question 22

Bolstering Witnesses

Answer 22

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

Question 23

Impeachment with Prior Inconsistent Statements

Answer 23

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

Question 24

Impeachment with Prior Felony Convictions

Answer 24

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

Question 25

Impeachment with Prior Misdemeanor Convictions

Answer 25

Fed-if it’s a misdemeanor involving dishonesty it’s admissible regardless, and if it’s not dishonesty then it’s inadmissible
CA-baseline they’re inadmissible but prop 8 says that misdemeanors of moral turpitude are admissible

Question 26

Older Convictions

Answer 26

Fed-10 years old it’s inadmissible unless the value is substantially outweighed by its probative value
CA-no specific rules about age, but age factors into the balancing test

Question 27

Impeachment with Bad Acts

Answer 27

Fed-bad acts involving lying can be admissible even if they don’t lead to a conviction but only when it’s presented on cross, no extrinsic evidence, and it’s 403 balancing
CA-civil cases-can’t use them
Criminal-you can include them and extrinsic evidence but it’s still subject to 352

Question 28

Rehab with Prior Consistent Statements

Answer 28

Fed-if the witness has been impeached then you can rehab them by putting forth a prior consistent statement
Saying they said the same thing before the motive arose
Fed says they are not hearsay
They were impeached on some other ground and putting this forth would help
CA-doesn’t matter about the motive thing, just matters if the prior consistent statement was made before
They are a hearsay exception

Question 29

Admissions of a Party Opponent

Answer 29

Fed-it’s not hearsay

CA-they’re called admissions and they’re a hearsay exception

Question 30

Vicarious Party Admissions

Answer 30

Fed-statement made by an agent or employee can also be admitted as a party opponent if it was made during the time of the employment and concerned a matter within the scope of it
CA-in civil cases, if it’s the negligent behavior of the employee under respondeat superior theory, but this is the only way in which an employer is also liable for the statements of their employees

Question 31

Other Vicarious Party Admissions

Answer 31

CA ONLY
Wrongful death action-statements by the deceased are also admissible against the plaintiff
Parent’s action for minor child’s injury, statements by the child are admissible against the parent
Action against a decedent’s estate, statements by the decedent is admissible against the estate provided
Had to do with a matter within the decedent’s personal knowledge
Made after they had recently perceived it and
Was made while their recollection was clear

Question 32

Prior Statements of Identification

Answer 32

Fed-identification is not hearsay
CA-they are a hearsay exception also has to be
ID must have been of a person who participated in the crime
Had to be while their memory was fresh
Witness must confirm that it truly reflected their opinion at the time