FRE and CEC distinctions

Question 1

SOURCES OF EVIDENCE LAW

Answer 1

FRE: generally applies in federal courts, but not grand jury proceedings or certain other miscellaneous proceedings.
CEC: applies in all civil and criminal cases, but not grand jury proceedings, in CA state courts.

Federal diversity cases: federal judge applies CEC to questions of privilege, competence, and the effect of presumptions.

Question 2

LOGICAL RELEVANCE

Answer 2

FRE: evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.

CEC: evidence is relevant if it tends to make the existence of any disputed fact of consequence to the determination of the action more or less probable than it would be without the evidence.

Question 3

LEGAL RELEVANCE (403/352)

Answer 3

FRE and CEC: The trial judge has discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.

Question 4

LIABILITY INSURANCE

Answer 4

FRE and CEC: evidence of liability insurance is not admissible to prove negligence but is admissible to prove ownership or control, or to impeach a witness

Question 5

SUBSEQUENT REMEDIAL MEASURES

Answer 5

FRE: evidence of safety measures or repairs after an accident is inadmissible to prove negligence or to prove defective design in a products liability case based on a theory of strict liability. However, it is admissible to prove ownership or control, to rebut a claim of no feasible precaution, or to prove destruction of evidence

CEC: The rule does not apply on the issue of defective design in SL cases; it applies only in negligence cases. Thus, evidence that the product was redesigned is inadmissible to prove the original design was defective because it is not being offered to prove negligence

Question 6

CIVIL SETTLEMENTS AND SETTLEMENT NEGOTIATIONS

Answer 6

FRE and CEC: evidence of settlements or offers to settle is inadmissible to prove validity or amount of a disputed claim; statements made during settlement discussions are also inadmissible

CEC: also adds statements made in connection with mediation proceedings are subject to additional confidentiality rules

Question 7

MEDIATION PROCEEDINGS

Answer 7

FRE: statements made during mediation proceedings are subject to the general rule for settlement negotiations

CEC: strict confidentiality rules for mediation proceedings; generally, statements made and writings prepared in connection with a mediation or mediation consultation are inadmissible in civil cases. This includes communications/documents made outside the mediation as long as they were made for the purpose of mediation

Question 8

PAYMENTS OF AND OFFERS TO PAY MEDICAL EXPENSES

Answer 8

FRE: evidence of payments/offers to pay medical expenses is inadmissible to prove liability for the injuries in question; however, accompanying admissions of fact are admissible

CEC: makes accompanying admissions of fact inadmissible

Question 9

PLEA DISCUSSIONS

Answer 9

FRE and CEC: evidence of withdrawn pleas, offers to plea, actual pleas of nolo contendere, and statements made during plea discussions is inadmissible

CEC: whether prop 9 would make this admissible in a criminal case is unclear

Question 10

EVIDENCE OF IMMIGRATOIN STATUS IN CERTAIN CIVIL CASES

Answer 10

FRE: n/a

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

Question 11

HOSPITAL QUALITY RECORDS IN CIVIL CASES

Answer 11

FRE: n/a

CEC: the following hospital quality records are inadmissible in civil cases: 1) records of hospital morbidity or mortality studies - that is, studies that examine complications or deaths; and 2) certain proceedings and records of hospital committees and peer review bodies

Question 12

VICTIM’S OR WITNESS’S ACT OF PROSTITUTION

Answer 12

FRE: n/a

CEC: in certain criminal cases, evidence that a crime victim or witness had engaged in prostitution at or around the time of the crime is inadmissible against them in a separate criminal prosecution for prostitution. The qualifying crimes are: any serious felony, assault, DV, extortion, human trafficking, sexual battery, stalking

Question 13

CHARACTER EVIDENCE

Answer 13

FRE and CEC: character evidence goes to the general character of a person and conveys a moral judgment; usually inadmissible to show conduct in conformity (that is, propensity evidence) subject to exceptions. Habit evidence, however, describes a person’s regular response to a specific set of circumstances and is admissible

Question 14

METHODS OF PROVING CHARACTER

Answer 14

FRE and CEC:
1. opinion testimony
2. reputation within the community testimony
3. specific instances of conduct

Question 15

CHARACTER EVIDENCE IN CIVIL CASES:

Answer 15

FRE: inadmissible unless -
1. character is directly in issue
2. evidence of prior acts of sexual assault or child molest when offered in a civil case where D is accused of the same type of conduct
3. MIAMI COP: where independently relevant for a non-character purpose - that is, offered to prove s/t other than propensity

CEC: same except no rule allowing evidence of a civil defendant’s similar acts of sexual assault or child molestation

Question 16

DEFENDANT’S CHARACTER IN A CRIMINAL CASE, GENERALLY

Answer 16

FRE: character evidence is admissible to prove defendant’s conduct in certain situations only. It is inadmissible unless D opens the door by offering evidence of their own good character; opinion testimony and reputation in the community testimony are admissible on direct and cross. specific instances of conduct is admissible on cross but only to prove character witness’s lack of knowledge (not to prove defendant’s character)

CEC: same; note that Prop 8 does not apply to evidence of D’s character to prove conduct

Question 17

DEFENDANT’S CHARACTER IN A CRIMINAL CASE: REBUTTING EVIDENCE OF VICTIM’S BAD CHARACTER

Answer 17

FRE: if court has admitted evidence of V’s character offered by D, P can offer evidence that D has the same character trait

CEC: narrower than FRE - allows evidence on the trait of VIOLENCE only. If court has admitted evidence of V’s violent character offered by D, P can offer evidence that D is also violent

Question 18

DEFENDANT’S CHARACTER IN A CRIMINAL CASE: PRIOR ACTS OF SA OR CHILD MOLEST

Answer 18

FRE: in SA or child molest prosecution, evidence of D’s other similar acts is admissible

CEC: additionally, in DV or elder abuse cases, P can offer evidence that D committed other similar acts

Question 19

DEFENDANT’S CHARACTER IN A CRIMINAL CASE: MIAMI COP

Answer 19

FRE and CEC: Defendant’s prior acts may be admissible if independently relevant for a non-character purpose.

MOTIVE, INTENT, ABSENCE OF MISTAKE, IDENTITY, COMMON PLAN OR SCHEME, OPPORTUNITY, PREPARATION

Question 20

DEFENDANT’S CHARACTER IN A CRIMINAL CASE: WHERE CHARACTER IS AT ISSUE

Answer 20

FRE and CEC: evidence of D’s bad character is admissible in the RARE case where character is directly in issue respecting the crime or defense. For bar exam purposes, the concept of character as being “at issue” usually comes up in civil cases only

E.g., some courts hold that character evidence is admissible to disprove D’s entrapment defense.

Question 21

VICTIM’S CHARACTER IN CRIMINAL CASE, GENERALLY

Answer 21

FRE: inadmissible unless D opens the door by offering evidence of V’s bad character. Opinion testimony and reputation within the community testimony on direct and cross, specific instances of conduct on cross but only to prove character witness’s lack of knowledge

CEC: generally same as FRE, but when D opens the door by offering evidence of victim’s bad character, all three forms of evidence (opinion testimony, reputation testimony, and specific instances of conduct) are admissible on both direct and cross. So, V’s specific acts of conduct are admissible to prove V’s bad character. Note that Prop 8 does not apply to evidence of V’s character to prove conduct

Question 22

VICTIM’S CHARACTER IN CRIMINAL CASE - SPECIAL RULE FOR HOMICIDE CASES

Answer 22

FRE: evidence of victim’s peaceful character offered by prosecution in a homicide case is admissible to rebut any type of evidence from defendant that victim was the aggressor. Opinion testimony and reputation within the community testimony is admissible on direct and cross-examination; specific instances of conduct are admissible on cross, but only to prove character witness’s lack of knowledge

CEC: no CA counterpart to Federal Rule regarding victim’s peaceful character in homicide cases; Prop 8 does not apply to evidence of victim’s character to prove conduct

Question 23

SEXUAL ASSAULT VICTIM’S PAST BEHAVIOR

Answer 23

FRE: opinion testimony and reputation within the community are generally inadmissible in all cases. In civil cases, evidence of sexual behavior is admissible only if it meets a strict balancing test. In criminal cases, specific instances of conduct regarding sexual behavior is admissible only for the following purposes:
- to prove someone other than defendant was the source of injury or physical evidence
- to prove prior acts of consensual sex between victim and defendant; and
- to avoid violation of defendant’s constitutional rights
- to prove prior acts of consensual sex between victim and defendant
- to avoid violation of defendant’s constitutional rights

CEC: applies only to criminal cases and provides that D cannot offer any evidence of victim’s prior sexual conduct to prove victim’s behavior unless victim’s prior sexual conduct was with defendant. V’s manner of dress at the time of the offense is also inadmissible. If prosecution initiates an inquiry into victim’s prior sexual conduct, defendant may cross-examine and rebut
*Prop 8 does not apply to evidence that is barred by CA’s rape-shield statute

Question 24

COMPETENCY

Answer 24

FRE: W must have personal knowledge of the matter about which they will testify, and must swear or affirm to tell the truth

CEC: generally same as federal rule. witness also must understand their legal duty to tell the truth

Question 25

USE OF HYPNOSIS

Answer 25

FRE: n/a

CEC: witness was hypnotized for the purpose of restoring memory is competent to testify only about matter that they recalled and related to other prior to the hypnosis. In criminal cases, CEC imposes additional requirements, including:
- the substance of the prehypnotic memory must have been preserved in a writing or recording prior to hypnosis
- the hypnosis must have been video recorded
- hypnosis must have been done outside of the presence of law enforcement, prosecution, and defense

Question 26

DEAD MAN ACTS

Answer 26

FRE: there is no federal dead man act although many states have these statutes

CEC: does not have a Dead Man Act

Question 27

REFRESHING RECOLLECTION

Answer 27

FRE: witness may refresh their memory while looking at a writing. If 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 witness refreshed their memory before trial, it is within court’s discretion to require production

CEC: it does not matter whether the refreshing was done before trial or during trial; if 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 28

EXPERT OPINION TESTIMONY - DETERMINING RELIABILITY

Answer 28

FRE: when federal courts determine the reliability of scientific or non-scientific opinions, they examine the expert’s theory or methodology and can consider various factors, including:
- whether it has been tested;
- publication/peer review;
- error rate; and
- whether it is generally accepted in the relevant field

CEC: when CA courts determine the reliability of scientific opinions, only one factor is considered: whether the opinion is based on scientific principles that are generally accepted in the relevant scientific field. This does not apply to non-scientific opinions. The reliability of a non-scientific opinion is based on the facts and circumstances of the case.

Question 29

EXCLUSION AND SEQUESTRATION OF WITNESSES

Answer 29

FRE: the judge must grant a party’s motion to exclude witnesses, except for those in the exempt categories.

CEC: gives the judge discretion to grant or deny a motion to exclude witnesses; as under FRE, a judge must not sequester any witness in an exempted category

Question 30

ACCREDITING OR BOLSTERING

Answer 30

FRE: with certain exceptions, a party is not allowed to bolster or accredit the testimony of their witness until witness has been impeached

CEC: same in civil cases, but in criminal cases, Prop 8 allows both P and D to bolster witness’s credibility before it has been attached

Question 31

IMPEACHMENT METHODS: PRIOR INCONSISTENT STATEMENT

Answer 31

FRE: may be proven by extrinsic evidence only after the witness is given an opportunity to explain or deny the statement. Not hearsay if limited to impeachment purposes; if offered as substantive evidence (for the truth of the matter asserted), generally inadmissible hearsay unless made under oath in a prior legal proceeding, in which case it falls within a hearsay exclusion (meaning it is not considered hearsay and is admissible)

CEC: a prior inconsistent may be proven by extrinsic evidence if the witness is at some point given an opportunity to explain or deny the statement. It is admissible as substantive evidence even if not made under oath in a prior legal proceeding + categorized as a hearsay exception, rather than a hearsay exclusion

Question 32

IMPEACHMENT METHODS: FELONY CONVICTIONS

Answer 32

FRE: convictions for felonies involving dishonesty or false statement are admissible and the court has no discretion to balance unless the conviction is more than 10 years old. Convictions for felonies not involving dishonesty or false statement are admissible subject to the court’s discretion. If the criminal defendant is being impeached, conviction is inadmissible unless PV outweighs unfair prejudice

CEC: felony convictions involving moral turpitude - including lying, violence, theft, extreme recklessness, or sexual misconduct - are admissible subject to 352. Note that simple assault is not considered a crime of moral turpitude. In civil cases, witness may be impeached only 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 evidence has any tendency to disprove credibility.

Question 33

IMPEACHMENT METHODS: MISDEMEANOR CONVICTIONS

Answer 33

FRE: misdemeanor convictions involving dishonesty or false statement are admissible; court has no discretion to exclude. Conviction for misdemeanors not involving dishonesty or false statement are inadmissible

CEC: in civil cases, misdemeanor convictions are inadmissible. In criminal cases, prop 8 makes misdemeanor convictions admissible subject to 352 if the crime involves moral turpitude

Question 34

IMPEACHMENT METHODS: OLDER CONVICTIONS

Answer 34

FRE: generally inadmissible if more than 10 years have passed but court may admit if probative value substantially outweighs prejudicial effect (difficult to pass)

CEC: does not have a specific rule for old convictions but court may consider timing as a factor affecting probative value when applying CEC 352 balancing test

Question 35

IMPEACHMENT METHODS: EVIDENCE OF BAD ACTS

Answer 35

FRE: W can be asked on cross about bad acts for which there was no conviction that bear on character for truthfulness (that is, act of lying), subject to 402. Extrinsic evidence is not permitted

CEC: civil cases - witness cannot be impeached with bad acts that did not result in conviction - this impeachment method is thus not available. In criminal cases, Prop 8 makes acts of moral turpitude admissible by both cross exam and extrinsic evidence

Question 36

IMPEACHMENT METHODS: CHARACTER TESTIMONY REGARDING UNTRUTHFULNESS

Answer 36

FRE and CEC: Opinion testimony and reputation within community testimony that bears on witness’s untruthfulness is admissible

Question 37

REHABILITATION WITH PRIOR CONSISTENT STATEMENT

Answer 37

FRE: witness’s prior consistent statement admissible to rehabilitate if:
- offered to rebut attack on witness’s credibility based on improper motive and if made before motive to lie arose, or
- offered to rehabilitate witness impeached on some other ground (sensory deficiency or prior inconsistent statement)
*PIS admissible to rehabilitate is also admissible as substantive evidence under a hearsay exclusion

CEC: admissible to rehabilitate if offered to rebut attack on witness’ credibility based on improper motive or prior inconsistent statement and if made before motive to lie arose or prior inconsistent statement was made; also admissible as substantive evidence but categorized as a hearsay exception

Question 38

HEARSAY

Answer 38

FRE and CEC: an out of court statement made by a declarant offered to prove truth of the matter asserted and inadmissible absent an exception

*CEC: hearsay law is exempt from Prop 8

Question 39

HEARSAY EXCLUSIONS V. HEARSAY EXCEPTIONS

Answer 39

FRE: exclusions - certain statements that are specifically removed from the definition of hearsay; also recognize exceptions to the hearsay rule - certain statements that are considered hearsay but are admissible anyway

CEC: recognizes hearsay exceptions only; no hearsay exclusions. Statements that fall within a hearsay exclusion under FRE are usually admissible as a hearsay exception in CA

Question 40

STATEMENTS THAT FALL WITHIN FEDERAL HEARSAY EXCLUSIONS: STATEMENTS BY OPPOSING PARTY

Answer 40

FRE: statements made by party or attributable to party and offered by opponent; need not be against speaker’s interest — not hearsay. Special types of opposing party statements include adoptive statements - such as admissions by silence - and vicarious statements - where statement by non-party is attributable to the party b/c of the relationship

CEC: categorized as an exception to hearsay and called PARTY ADMISSIONS

Question 41

STATEMENTS THAT FALL WITHIN FEDERAL HEARSAY EXCLUSIONS — VICARIOUS OPPOSING PARTY STATEMENT (PRINCIPAL-AGENT)

Answer 41

FRE: statement by agent concerning any matter wi/in scope of agency made while employment relationship exists is admissible against principal — not hearsay

CEC: no related provision; however, in respondeat superior civil cases, a statement of an employee is admissible against the employer if the employee’s negligent conduct is the basis for the employer’s liability

Question 42

CALIFORNIA VICARIOUS ADMISSIONS WITH NO CORRELATING FRE

Answer 42

1. in wrongful death actions, statements by deceased are admissible v. plaintiff
2. in parent’s action for minor child’s injury, child’s statements are admissible against parent
3. in civil cases where party’s right or title to property depends on whether a supposed predecessor in interest holds or held the right or title, statements made by predecessor in interest when they are supposedly the holder are admissible against the party
4. in an action against decedent’s estate, decedent’s statement is admissible against estate provided decedent had personal knowledge and made statement after recently perceiving the matter + while the recollection was clear