CA Evidence

Question 1

Prop 8

Answer 1

in criminal case, all relevant evidence is admissible, even if objectionable under the CEC, with exceptions.

1. exclusionary rules under the US constitution (confrontation clause)
2. hearsay
3. privilege
4. limits on character evidence to prove D’s/Victim’s conduct
5. best evidence
6. CEC 352, unfair prejudice

Question 2

relevance

Answer 2

same as FRE but the fact in consequence must also be in dispute

Question 3

subsequent remedial measures

Answer 3

In CA allowed to show defect existed under strict liability suit

Question 4

mediation discussions

Answer 4

discussions are inadmissible

Question 5

payment or offers to pay medical expenses

Answer 5

same as FRE but also makes admissions of fact inadmissible

Question 6

expressions of sympathy

Answer 6

in civil actions expressions of sympathy are inadmissible if related to suffering or death

Question 7

pleas later withdrawn

Answer 7

raise Prop 8 issue but conclude it is up for debate can be excluded for unfair prejudice

Question 8

character evidence in civil cases

Answer 8

no CA exception

Question 9

character evidence exceptions

Answer 9

CA only: in prosecution for crime of domestic violence or elder abuse, prosecution may offer evidence that D committed other acts of domestic violence or elder abuse

CA only: where court has admitted evidence of V’s character for violence offered by accused, prosecution may offer evidence that accused has violent character.

NOT IN CA: Federal only: where court has admitted evidence of victim’s character offered by accused, prosecution may offer evidence that accused has same character trait.

Question 10

Admissibility of evidence of Victim’s character to prove conduct

Answer 10

Federal only:
In a homicide case the prosecution can be first to offer evidence that victim had peaceful character if defendant offers evidence victim attacked first.

Question 11

competency

Answer 11

same as FRE but witness must also understand legal duty to tell the truth

Question 12

disqualifying witnesses

Answer 12

same as FRE but CA disqualifies witnesses who were hypnotized nefore trial to help refresh recollection, except in criminal case hypnotized witnesses by police are allowed if using procedures that protect against suggestion

Question 13

Expert opinion

Answer 13

same except last element based on Kelley/Frye: the opinion must be based on principles generally accepted by experts in the field. This standard is not altered by Proposition 8 because it is a standard of relevance.

Question 14

learned treatise

Answer 14

California: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.

Question 15

imperachment by PIS

Answer 15

3. California: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath

Question 16

impeachment by prior felony convictions

Answer 16

2. CA: All felonies involving “moral turpitude” are admissible but court must balance; 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 17

Prior misdemeanor convictions

Answer 17

2. California: The CEC makes misdemeanor convictions inadmissible to impeach. But because of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct), subject to balancing probative value vs. unfair prejudice. This means misdemeanors are inadmissible in California to impeach in a civil case.

no ten year rule in CA but balancing includes age

Question 18

hearsay

Answer 18

not affected by Prop 8

Question 19

contemporaneous statement

Answer 19

similar to present sense impression but narrower: the declarant must be engaged in the conduct.

Question 20

admission of party opponent

Answer 20

same as FRE, CA is exception

Question 21

Vicarious party admission

Answer 21

employee statement only a party admission if employer is liable under respondeat superior

Question 22

prior statement of witness

Answer 22

California: Witness’s prior inconsistent statements, prior consistent statements, and statements of identification admissible as hearsay exceptions (nonhearsay under federal law).

Question 23

PIS

Answer 23

California: Hearsay if offered to prove truth of facts asserted but admissible under exception whether or not under oath

Question 24

declaration against interest

Answer 24

CA also includes statements against social risk

no need to include corroborating evidence

Question 25

unavailable declarant

Answer 25

Federal only: Declarant refuses to testify despite court order; declarant’s memory fails on the subject of her statement. California only: Declarant suffers total memory loss; declarant refuses to testify out of fear

Question 26

former testimony exception

Answer 26

CA civil case In a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered, or The former testimony is offered against the person who offered it in evidence in her own behalf in the earlier proceeding, or against a successor in interest of such person. Deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse. Otherwise, the former testimony exception does not apply to deposition testimony given in the same case in which the hearsay is offered at trial

Question 27

dying declaration

Answer 27

exception applies to all civil and criminal cases and declarant must be dead.

Question 28

statement describing infliction or threat of physical abuse

Answer 28

Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances. confrontation clause issue? if made during ongoing emergency not testimonial otherwise yes.

Question 29

physical or mental condition for purpose of medical diagnosis or treatment

Answer 29

exception is narrower: A statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect.

Question 30

CA exception when physical or mental condition is at issue

Answer 30

A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case—no requirement that statement be made for medical purposes. Declarant must be unavailable

Question 31

business records exception

Answer 31

same as FRE but California exception does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses

Question 32

Public records exception

Answer 32

does not place same restrictions on prosecution

Question 33

Exception for judgment of previous conviction

Answer 33

The specific exception for convictions applies only in civil cases. Prop. 8 does not change this hearsay law. But, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases

Question 34

Self-authentication writings

Answer 34

CA does not include business records and trade inscriptions

Question 35

Best evidence rule

Answer 35

Admits duplicates and other written evidence of contents of original, such as handwritten notes

Question 36

psychotherapist privilege

Answer 36

California only: (1) Psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger; (2) doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gunshot wounds and some communicable diseases

Question 37

spousal testimonial privilege

Answer 37

CA: applies in both civil and criminal cases, spouse/partner cannot even be called to witnesss stand

Question 38

other CA privileges

Answer 38

California also recognizes (1) privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence, (2) privilege for penitential communications between penitent and clergy, and (3) immunity from contempt of court for news reporter who refuses to disclose sources.

Question 39

Preliminary determination of admissibility

Answer 39

judge bound by rules of evidence

Question 40

judicial notice

Answer 40

Whether requested or not, court must take judicial notice of matters generally known within jurisdiction

Question 41

conclusiveness

Answer 41

California: Court instructs jury that it must accept judicially noticed fact in both civil and criminal cases FRE only civil, criminal is may