Evidence Distinctions

Question 1

What is the difference between fre and cec rules on relevance?

Answer 1

Cec says that evidence is only relevant if it goes to a disputed fact

Question 2

What is the difference with subsequent remedial measures?

Answer 2

Cec permits evidence of subsequent remedial measures to prove defective design in products liability cases

Question 3

What’s the difference with settlement offers?

Answer 3

Cec also prohibits evidence of communications made in mediation

Question 4

What’s the difference with offers to pay medical expenses?

Answer 4

Cec does not admit accompanying admissions of fact

Question 5

Expressions of sympathy?

Answer 5

Inadmissible in Cali civil cases, though accompanying admissions of fact are admissible. Fre does not have such rule.

Question 6

Prior sexual assault or child molestation case in civil cases?

Answer 6

Fre allows evidence of prior sexual misconduct in civil cases. Cali does not.

Question 7

Rebutting victim’s bad character?

Answer 7

Fre allows evidence of defendant’s character for same trait when defendant admits evidence of victim’s character. Cec only allows evidence of defendants violent character of defendant offered evidence of victim’s violence.

Question 8

Prior sex assault, child molestation, elder abuse, domestic violence.

Answer 8

Both allow evidence of prior sex assault or child abuse. Cali also allows evidence of prior elder abuse and dv.

Question 9

Specific instances of conduct?

Answer 9

Fre only on cross to prove wit’s lack of knowledge. Cre allows sic on direct and cross.

Question 10

Victim’s peaceful character in a homicide?

Answer 10

Fre admissible to rebut that victim was the aggressor. Cec, no rule.

Question 11

Sic victim’s sexual behavior in a rape case?

Answer 11

Fre can prove someone other than defendant caused semen or injury. Cec only if victim’s prior sexual conduct was with defendant, or if prosecution opens door to victim’s prior sexual conduct.

Question 12

Conclusiveness of judicial notice?

Answer 12

Fre only in civil cases, cec both civil and criminal.

Question 13

Ancient documents?

Answer 13

Cec 20 years

Fre 30 years

Question 14

Business records and trade inscriptions?

Answer 14

Fre self authenticating. Not under cec.

Question 15

Handwritten copies for best evidence?

Answer 15

Fre, handwritten copies not duplicates. Cec, handwritten copies are duplicates Ms.

Question 16

Witness competency

Answer 16

Cec also requires witness understand oaths.

Question 17

Differences in expert testimony?

Answer 17

Fre follows daubert, cec follows Frye (opinion based on generally accepted scientific principles)

Question 18

Prior inconsistent statements?

Answer 18

Fre nonhearsay is made under oath. Cec nonhearsay if offered to impeach, otherwise a hearsay exception.

Question 19

Prior convictions

Answer 19

Fre no discretion to exclude convictions for dishonesty crimes unless 10 years old. Cec, misdemeanors can’t be used to impeach in civil cases, can be used in criminal cases if they involve turpitude, subject to balancing.

Question 20

Impeachment by sic/bad acts?

Answer 20

Fre can ask about sic on cross that constitute acts of lying, subject to balancing, no extrinsic evidence.

Cec in civil cases, sic inadmissible through cross or extrinsic evidence. Cec allows sic of turpitude in criminal cases on cross and through extrinsic evidence.

Question 21

Sequestration?

Answer 21

Fre mandatory unless witness in exempted category. Cec, court has discretion to sequester.

Question 22

Privilege

Answer 22

Fre, based in common law. Cec, based in statute.

Question 23

Attorney-client privilege

Answer 23

Fre, privilege applies after client’s death. Cec, privilege ceases after client’s estate distributed.

Question 24

Doctor-patient privilege

Answer 24

Fre doesn’t have a rule. Cec privileges communication with licensed Dr. (or his staff) for diagnosis or treatment only in civil cases.

Question 25

Spousal immunity

Answer 25

Fre only applies spousal immunity to witness spouse in criminal case. Cec applies spousal immunity to civil and criminal cases and includes domestic partners.

Question 26

Confidential marital communications

Answer 26

Fre, can be claimed by both spouses. Cec includes domestic partners.

Question 27

Journalist privilege

Answer 27

Cec can’t hold journalist in contempt for refusing to reveal a source. Fre no privilege.

Question 28

Prior statement of identification

Answer 28

Fre nonhearsay. Cec, hearsay exception if wit made id when memory fresh, confirms in court that prior id truly reflected her opinion at the time.

Question 29

Statement made by opposing party/party admission

Answer 29

Fre nonhearsay, cec hearsay exception.

Question 30

Adoptive admission

Answer 30

Fre nonhearsay. Cec hearsay exception.

Question 31

Grounds for witness unavailability

Answer 31

Fre and cec acknowledge privilege, lack of memory, death, absence, physical illness. Fre recognizes refusal to testify. Cec does not acknowledge refusal to testify unless fear based on threats.

Question 32

Statements against interest

Answer 32

Fre and cec include statements against financial and criminal interest. Cec also includes social interest. Fre requires corroboration, cec does not.

Question 33

Dying declaration

Answer 33

Fre only applies if civil case or homicide and declarant unavailable. Cec allows dying decorations in all cases, but declarant must be dead. Both require the statement concern what killed him.

Question 34

Past physical condition

Answer 34

Cec allows statement of past physical condition where declarant unavailable and condition at issue in the case. Fre has no such rule.

Question 35

Statement describing infliction/threat of injury

Answer 35

Under cec, where unavailable declarant describes threat or infliction of injury, admissible if made at or near time of threat/injury, circumstances indicate trustworthiness, statement is in writing, recorded, made to leo or medical personnel. Fre has no such rule.

Question 36

Learned treatise

Answer 36

Fre allows where expert acknowledges treatise as authoritative. Cec applies learned treatise only to facts of general notoriety and interest.

Question 37

Genuineness of handwriting

Answer 37

Fre goes to jury, cec, determined by Judge