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Flashcards in CA Evidence distinctions Deck (19)
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1
Q

Judicial notice – must the court take it?

A

FRE: If requested, must take. If not requested, may take.

CEC: Whether requested or not, MUST take.

2
Q

Judicial notice – must the jury accept it?

A

FRE: Jury MUST accept in civil; MAY in criminal.

CEC: Just MUST accept in BOTH civil and criminal

3
Q

Relevance

A

FRE: Any fact; need not be in dispute

CEC: Must pertain to a disputed fact

4
Q

Prop 8

A

All relevant evidence is admissible in a criminal case. EXCEPT:

a. Confrontation clause (exclusionary rule)
b. Hearsay
c. Privilege
d. Secondary/Best Evidence Rule
e. Character Evidence (to prove Defendant’s or Victim’s conduct)
f. Balancing under CEC 352

5
Q

Character in civil cases (big 4)

A

FRE: Inadmissible in civil cases unless character is essential to an element or defense. Admissible in civil cases arising out of child molestation or sexual assault cases.

CEC: Same general rule. Does not follow FRE on child molestation/sexual assault

6
Q

Character in criminal case – Character of defendant

A

FRE: Reputation (R), Opinion (O) on direct, and specific acts (SA) are OK on cross.

CEC: Reputation and opinion ONLY; no specific acts on cross.

7
Q

Character in criminal case – Types of evidence available to show character of victim

A

FRE: Limited to reputation or opinion.

CEC: Can use R, O, and now SA are permissible.

8
Q

Character in criminal case – Character of victim in homicide case

A

FRE: Prosecution can present good character evidence if Defendant claims Victim was initial aggressor.

CEC: Defense must first offer bad character of victim for violence.

9
Q

Impeachment – use of specific instances of dishonest acts

A

FRE: A party can ask a question on cross, but stuck with witness’s answer. No extrinsic evidence is allowed. Civil or criminal cases.

CEC: If the witness denies, then can use extrinsic evidence. CRIMINAL ONLY.

10
Q

Impeachment – prior inconsistent statement

A

FRE: Admissible substantively, only if under oath (801).

CEC: Admissible substantively, whether or not under oath.

11
Q

Impeachment – prior consistent statement

A

FRE: Must be made before motive to lie arose.

CEC: PCS only has to be made before the alleged inconsistent statement.

12
Q

Experts

A

FRE: Daubert

CEC: Frye

13
Q

Public policy – SRM

A

FRE: SRMs inadmissible.

CEC: SRMs admissible in strict liability cases.

14
Q

Public policy –offers to pay medical expenses

A

FRE: Offers to pay medical expenses does not also cover accompanying statements.

CEC: Both the offer and the accompanying statement are covered (i.e., inadmissible).

15
Q

Hearsay exceptions – dying declaration

A

FRE: Dying declarant needs to be unavailable but need not be dead, and only in homicide case.

CEC: Any case, but only if declarant is DEAD.

16
Q

Hearsay exceptions –declaration against interest

A

FRE: Declaration against interest is against penal, proprietary, or pecuniary interest.

CEC: Add subjecting declarant to social ridicule too.

17
Q

Hearsay exceptions –Present sense impression

A

FRE: Present sense impressions include events happening to anyone.

CEC: Contemporaneous statements regarding declarant’s conduct ONLY.

18
Q

CA’s additional hearsay exception

A

“OJ exception”

Requirements:

(1) Unavailable declarant;
(2) Statement describing or explaining infliction or threat of physical abuse;
(3) Made at or near time of injury or threat;
(4) In writing, recorded, or made to police or medical professionals;
(5) Under trustworthy circumstances.

19
Q

Hearsay exceptions –statements for medical diagnosis

A

FRE: Statement for medical diagnosis or treatment covers cause of injury.

CEC: Source of injury is inadmissible.