Evidence

Question 1

Prop 8

Answer 1

Under Prop 8, all relevant evidence is admissible in criminal trials in California state courts, even if objectionable under the CEC, subject to exclusionary rules such as:

1. constitutional exclusionary rules;
2. the Secondary Evidence Rule;
3. hearsay;
4. privilege;
5. rape- shield laws;
6. specific character evidence of victim conduct and defendant’ conduct prior to defendant “opening the door”; OR
7. CEC 352 balancing.

Question 2

Logical Relevance

Answer 2

Evidence is logically relevant if it has any tendency to make a fact of consequence more or less probable than it would be without that evidence. In CA, the fact must also be in dispute.

Question 3

Legal Relevance

Answer 3

Under FRE 403 (CEC 352), judges may exclude logically relevant evidence if its probative value is substantially outweighed by risk of:

1. unfair prejudice;
2. confusion of the issues;
3. misleading the jury;
4. undue delay;
5. waste of time; OR
6. needless presentation of cumulative evidence.

Further, rather than exclude evidence, however, the court could merely:

1. limit the scope of evidence or examination to specific topics; OR
2. give a limiting jury instruction.

Question 4

Similar Accidents or Injuries Caused by Same Condition

Answer 4

Evidence of prior accidents or injuries caused by same event or condition under substantially similar circumstances is admissible to prove:

1. dangerous condition existed;
2. condition caused present injury; OR
3. defendant had notice of the condition.

Question 5

Prior Injuries to Same Body Part

Answer 5

If the plaintiff previously injured reinjured a body part, evidence may be admitted to show plaintiff’s condition is somewhat attributable to the prior injury, not the present accident.

Question 6

Prior False Claims

Answer 6

Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.

Question 7

Motive or Intent

Answer 7

Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case.

Question 8

Rebutting Claim of Impossibility

Answer 8

Evidence of similar occurrences may be admitted to rebut a claim of impossibility.

Question 9

Comparable Sales to Establish Value

Answer 9

Evidence of a similar property’s sale price is admissible to prove value if the property was in the same area and sold at around the same time.

Question 10

Habit

Answer 10

Habit is a person’s **regular response **to a specific set of circumstances. Habit evidence is admissible to show someone acted in accordance with the habit on a particular occasion. Usually, courts limit habit evidence to behaviors that are semi-automatic or reflexive.

Question 11

Routine Practice Evidence

Answer 11

The routine practice of an organization is admissible to show the organization acted in accordance with their routine practice on a particular occasion.

Question 12

Industrial Custom

Answer 12

Evidence showing how others in the same trade or industry acted in the recent past is admissible—but not conclusive—to establish an appropriate standard of care.

Question 13

Liability insurance

Answer 13

Evidence of liability insurance (or lack of it) is NOT admissible to prove culpability (that a person acted negligently or wrongfully).

HOWEVER, the court may admit such evidence for another purpose, like: impeachment, agency, ownership, control, or motive.

Question 14

Subsequent Remedial Measures

Answer 14

Evidence of subsequent remedial measures is not admissible to show culpability or negligence. Further, under the FRE, such evidence is also not admissible to show a defect in a strict liability products liability action. However, such evidence is admissible for other purposes, such as impeachment, ownership, control, or feasibility of precautionary measures.

Question 15

Civil Settlements / Settlement Negotiations

Answer 15

Offers to compromise and statements made in settlement negotiations are NOT admissible: (1) to prove or disprove validity or amount of a disputed claim (the claim must be filed or threatened); OR (2) to impeach by a prior inconsistent statement or contradiction.

HOWEVER, such evidence is admissible for another purpose, such as: (1) proving witness bias/prejudice; (2) negating undue delay contention; (3) proving obstruction of justice in a criminal matter. Statements made before a claim was filed or threatened ARE ALLOWED.

In CA, statements made and writings prepared in connection with mediation proceedings are generally not admissible in civil cases. However, consent by all parties allows admission.

Question 16

Payments of / Offers to Pay Medical Expenses

Answer 16

Evidence of paying or promising/offering to pay medical expenses or bills is NOT admissible to prove liability for injury (even if there is no disputed claim).

• Under the FRE, any related statements or factual admissions (other than the offer to pay) ARE admissible.
• In California, admissions of fact made in conjunction with payments or offers to pay medical expenses are NOT admissible.

Question 17

Withdrawn Guilty Pleas & Accompanying Statements

Answer 17

An offer to plead guilty and related statements made during plea negotiations are not admissible to prove that a criminal defendant is guilty, or a consciousness of guilt.

CA law is unclear as to whether Prop 8 applies. Even so, the court still may exclude it for unfair prejudice.

Question 18

Statements of Sympathy

Answer 18

In California, expressions of sympathy relating to the pain, suffering, or death of an accident victim are inadmissible in civil cases. HOWEVER, statements of fault made in connection with such an expression are not excluded.

Question 19

Evidence of Immigration Status

Answer 19

Under CA law, evidence of a person’s immigration status is not admissible or discoverable in civil actions for personal injury or wrongful death. In all other proceedings, the judge must hold an in-camera hearing to determine admissibility.

Question 20

Records of Hospital Morbidity or Mortality Studies

Answer 20

California recognizes public policy exclusions for:

1. records of hospital morbidity or mortality studies; AND
2. certain proceedings and records of organized hospital committees and peer review bodies.

Question 21

Proceedings and Records of Hospital Quality and Care Committees

Answer 21

Under CA law, certain proceedings and records of organized hospital committees and peer review bodies are inadmissible in civil cases.

Question 22

Victim or Witness’s Act of Prostitution

Answer 22

Under CA law, when a person was a victim of or witness to certain crimes, evidence that they had engaged in prostitution at or around the same time is not admissible against them in a separate criminal prosecution for prostitution. Qualifying crimes are: any serious felony, assault, domestic violence, extortion, human trafficking, sexual battery, and stalking.

Question 23

Preliminary Questions

Answer 23

• When determining preliminary facts (e.g., competency), a federal judge is generally NOT bound by evidence rules, EXCEPT privileges.
• In California, the judge generally is bound by the rules of evidence.

Question 24

Authentication

Answer 24

Unless parties stipulate otherwise, an item of evidence generally must be authenticated to be admitted. To authenticate an item of evidence, a party must introduce extrinsic evidence showing the item is what the party purports it to be. Authentication generally requires witness’s first-hand knowledge or familiarity.

Self-Authenticating Evidence

Some evidence is self-authenticating, requiring no extrinsic evidence of authenticity. Self- authenticating evidence includes:

1. certified copies of public documents;
2. newspapers and periodicals;
3. documents acknowledged by a notary.

In California, trade inscriptions and certified business records are not self-authenticating.

Question 25

Best Evidence Rule (Secondary Evidence Rule in CA)

Answer 25

**General Rule** Genearlly, a party must provide an original writing, recording, photograph, or x-ray to prove its contents. **Exception** An original is not needed if: 1. the party provides a reliable duplicate; 2. all originals are lost or destroyed (and not by the offering party acting in bad faith); 3. an original is unobtainable by judicial process; 4. an original is not produced after proper notice given to party in control and against whom it was being offered; 5. the original is not closely related to a controlling issue; OR 6. fact exists independently of a writing. **Slight FRE vs. CEC Distinction** * Under the FRE, handwritten duplicates are NOT admissible. * In CA, handwritten duplicates ARE admissible.

Question 26

Conditional Relevance

Answer 26

If relevance depends on a particular fact finding by the jury, the court will admit the evidence after making a threshold (and final) determination that a reasonably jury could find the necessary fact.

Question 27

Judicial Notice

Answer 27

Judicial notice is recognition of a fact as true without formal presentation of evidence. A court may take judicial notice of a fact if: 1. it is not subject to reasonable dispute because it is generally known within the court’s territorial jurisdiction; OR 2. it is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be disputed. Under the FRE and CA law, judicially noticed facts are conclusive in civil cases. Under CA law, judicially noticed facts are conclusive in criminal cases.

Question 28

Rule of Completeness

Answer 28

Under the Rule of Completeness, if a party offers PART of a writing or recorded statement, the other party may require introduction of any other part in fairness (as long as not barred by, e.g., double hearsay).

Question 29

Character Evidence – Generally

Answer 29

Generally, evidence of a person's character is NOT admissible to show propensity, i.e., that on a particular occasion the person's behavior accorded with a trait. HOWEVER, character evidence is admissible if: 1. offered for **non-propensity purposes**; 2. character is **"in issue";** OR 3. other limited circumstances.

Question 30

Character Evidence – Non-Propensity Purposes

Answer 30

Evidence of person’s other crimes, wrongs, or acts is admissible to prove: 1. motive, 2. identity, 3. absence of mistake, 4. intent, 5. common plan or scheme, 6. opportunity, 7. preparation, 8. knowledge. **Reasonable Notice in Criminal Cases** In a criminal case, the prosecutor must provide reasonable notice of any evidence of a person's other crimes, wrongs, or acts that the prosecutor intends to offer at trial.

Question 31

Character Evidence – When Character is "In Issue"

Answer 31

Character is "in issue" when character is an **essential element** or **ultimate issue of** a **charge**, **claim**, or **defense** (e.g., in defamation, negligent hiring, child custody, entrapment).

Question 32

Character Evidence – Civil Cases

Answer 32

In civil cases, character evidence is NOT admissible to prove conduct in conformity. **HOWEVER, under the FRE, there is an exception for evidence of the defendant’s prior similar acts in civil and criminal sexual assault and child molestation cases.** In CA, there is no such exception.

Question 33

Character Evidence – Defendant's Character in Non-Rape Criminal Cases

Answer 33

**General Rule: Only Defendant Can Initiate** A defendant MAY ALWAYS offer **opinion** or **reputation** evidence of their own character. HOWEVER, prosecution must generally wait until a defendant "**opens the door**" with evidence of defendant's good character to introduce evidence of defendant's bad character. **Sexual Assault / Child Molestation Exception** In sexual assault or child molestation criminal cases, prosecution may offer evidence that defendant committed other acts of sexual assault or child molestation. **Domestic Violence / Elder Abuse Exception [CA Only]** In CA, in domestic violence or elder abuse cases, prosecution can initiate showing defendant’s other acts of domestic violence or elder abuse. **Homicide Self-Defense Case [Federal Only]** In a **homicide case** in which the defendant pleads **self-defense**, evidence of any kind that the victim was the first aggressor (e.g., eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness. **Rebuttal to Evidence of Defendant's Good Character** *Cross-Examination of Defendant's Character Witnesses* Once a defendant introduces reputation and opinion evidence of their own good character, prosecution may cross-examine the defendant’s character witness about defendant’s **specific instances** of conduct. HOWEVER, the prosecution cannot introduce any extrinsic evidence of the misconduct. *Prosecution's Own Witness* The prosecution may rebut defendant’s character evidence by calling its own character witnesses to testify to defendant’s bad **reputation** or their **opinion** of defendant’s character for the particular trait involved. **Rebuttal to Evidence of Victim's Bad Character** * Under federal law, if a defendant has offered evidence of a victim’s bad character, prosecution may rebut with evidence that the defendant has a **bad character for the *same* trait**. * In California, if a defendant has offered evidence of a victim’s **character for violence**, prosecution may rebut by offering evidence the defendant has a **violent character**.

Question 34

Character Evidence – Victim's Character in Non-Rape Criminal Cases

Answer 34

**Defendant's Initiative** Generally, a defendant may generally introduce reputation or opinion evidence of an alleged crime victim's bad character trait if relevant to show the defendant’s innocence. HOWEVER, there is an exception for bad character of RAPE VICTIMS. **Prosecution's Initiative** Under the FRE, if a **homicide defendant** offers any evidence the **victim attacked first**, prosecution can offer **reputation** or **opinion** evidence that victim had peaceful character. **Prosecution Rebuttal** Under the FRE, the prosecution may counter by: 1. offering **reputation** or **opinion** evidence of the victim’s good character for the same trait; 2. offering **reputation** or **opinion** evidence of the defendant’s bad character for the same trait; OR 3. by cross-examining defendant’s character witness about **specific instances** of the victim’s conduct. **CA Specific Acts Rule** Under CA law, evidence of victim’s character and rebuttal evidence of defendant’s bad character may be proved by opinion, reputation, AND specific acts evidence. All are permitted on both direct examination and cross-examination.

Question 35

Character Evidence – Sex Cases

Answer 35

**Victim's Past Behavior** **Under the FRE**, in any civil OR criminal proceeding involving alleged sexual misconduct, evidence offered to prove victim's sexual behavior or sexual disposition is generally inadmissible. HOWEVER, in a criminal case involving alleged sexual misconduct, evidence of **specific instances** is admissible to prove a non-defendant is source of physical evidence. Further, if those instances are **between the victim and the defendant**, that evidence is admissible (a) by the prosecution FOR ANY REASON and (b) by the defense to prove CONSENT. In a civil case involving alleged sexual misconduct, specific instance evidence of a victim's sexual behavior is admissible if: (1) no other rule excuses it; and (2) it's probative value substantially outweighs (a) danger of harm to the victim and (b) danger of unfair prejudice to any party. **Under CA law**, in criminal sexual assault cases, any character evidence of victim’s sexual conduct is inadmissible to prove victim’s consent, unless conduct involved defendant. Further, evidence of victim’s manner of dress during offense is inadmissible. HOWEVER, if prosecution introduces evidence of victim’s prior sexual conduct (e.g., by asking victim or other witness about it), defendant may cross-examine the witness who gave the evidence and can rebut only that specific evidence. **Defendant's Similar Misconduct** In a **criminal or civil case** in which a defendant is accused of **sexual assault** or **child molestation**, evidence of defendant's other sexual assault or child molestation is admissible. Such evidence is **admissible for any purpose**, including propensity. This evidence must be disclosed the defendant fifteen days before trial or later with good cause.