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38 Cards in this Set

  • Front
  • Back
When does the truth in evidence amendment (Prop 8) apply and what does it do?
applies in only criminal cases and makes all relevant evidence admissible, even if objectionable under the Cal Evidence Code (CEC).
Constitutional amendment overrules CEC.
What CEC objections are not overruled by Prop 8?
i) exclusionary rules under US constitution (confrontation C)
ii)hearsay law
iii)privilege law
iv) CE limits about V in rape
v) rule preventing P from introducing CE before D opens door
vi)secondary evidence rule (California's best evidence rule)
vii) CEC 352- court's power to exclude if unfair prejudice subtantially outweighs probative value
Under FRE, evidence is relevant if it tends to make the existence of any material fact more or less probable. How is Cali different/
That fact of consequence (material fact) must also be in dispute.
D stipulates to fact of consequence, then P can't introduce evidence solely introduced to establish that fact. (avoids prejudice)
Subsequent Remedial Measures inadmissible to prove negligence. FRE and CALI.
Subsequent remedial measures ARE admissible to show defective design in strict products liability case in CALI
Offers to settle inadmissible in FRE and CALI.
discussion during MEDIATION proceedings also inadmissible in CALI
FRE excludes statements of liability when such statements are part of the settlement offer.
CALI makes admissions of fact made IN THE COURSE of making payments or offers.
How are expressions of sympathy dealt with in CALI in CIVIL actions?
Statements of sympathy for the death or suffering of an accident victim are INADMISSIBLE. statements of Fault made in connection ARE ADMISSIBLE, however.
Withdrawn pleas and offers to settle are inadmissible under FRE and CEC. What about Prop 8 in a criminal trial?
Prop 8 makes the law unclear. Even if it applies, the court may exclude if unfair prejudice results.
CE is inadmissible to prove conduct in CALI and FRE in CIVIL cases. FRE has exception for sexual assault or child molestation. Any CALI exception?
CE is inadmissible in CIVIL cases to prove conduct in CALI
Exceptions to rule that D must be first to open CE door. FRE and CALI--> CRIM case of sexual assault or child molestation
FRE only- P may offer evidence that D has same trait where court admitted evidence against V.
CALI- in DV, P may introduce evidence that D committed other acts of DV
CALI- P may offer evidence of D's violent character where court admitted D's evidence of V's violent character
FRE and CALI: P cannot be first to introduce CE to prove conduct. FRE exception that P can introduce CE of V's peaceful nature if D offers evidence V attacked first.
If V's CE is relevant it is subject to CEC 352 balancing.
CALI- reputation, opinion, specific instances on direct and cross. (FRE no specific on direct,but ok on cross)
Rape shield statute. F/C both limit CE of V whn offered to support D's assertion of consent. Does Prop 8 apply to make any relevant evidence admissible?
No. This is one of the exceptions to Prop 8.
F/C similarly require testimonial witnesses to testify on personal knowledge, be able to communicate, claim to recall what they perceived, and take an oath. How is CALI unique?
CALI- witness must also understand that they have a legal duty to tell the truth.
Expert opinion in F/C: i) helpful to jury ii)witness must be qualified iii)W must believe in opinion with R degree of certainty iv) opinion must be supported by proper factual basis v)must be based on reliable principles reliably applied to facts. How is CALI different/
C/F differ on the application of the vth prinicple to scientific opinions.
The F Daubert standard(4): publication/peer review;error rate; results are tested and retestable; R level of acceptance. What is the one CALI factor for admissibility of scientific opinion testimony?
CALI- the opinion must be based on principles generally accepted by experts in the field.
How does the learned treatise exception differ between F/C?
F- admissible to prove anything if treatise is accepted authority in field.

CALI- very narrow, only admissible to show matters of general notoriety or interest.
PIS are not hearsay if offered to impeach in F/C.
F- if given under oath at trial or depo, also not hearsay to prove truth of fact asserted

CALI- PIS admissible to prove truth even if not under oath when made.
Under F law, impeachment by all prior felony conviction for felonies involving false statement is allowed without balancing. Other convictions may be admitted if balanced. How does CALI differ?
All felonies involving "moral turpitude" are admissible, but must be balanced, unlike F felony rule. Prop 8 does not effect this becaue they must be felonies involving crimes of moral turpitude to be relevant in a criminal case anyway.
What are CALI crimes of "moral turpitude"?
crimes of lying, violence, theft, extreme recklessness, and sexual misconduct. Not unintentional or negligent acts.
F allows all misdemeanors involving a false statement w/out balancing. All other MIS inadmissible to impeach.
CEC makes MIS inadmissible, but in a CRIM case Prop 8 would allow MIS based on "moral purp", subject to 352 balancing. MIS inadmissible in CALI for CIVIL case.
F/C allow extrinsic evidence to prove conviction that is otherwise admissible.
BUT, FRE holds that convictions over 10 years are inadmissible unless balanced.
CALI- no specific "10 year rule" as in FRE, but will balance considering factors such as age of conviction and probative value.
AT F, non-conviction misconduct related to truthfulness is admissible in CIV and CRIM, so can ask witness on cross, but can't bring extrinsic evidence.
CEC makes inadmissible, but PROP 8 makes non-conviction misconduct of moral turp. relevant for CRIM only. Both CROSS and EXTRINSIC allowed subject to balancing.
Does Prop 8 exempt CALI CRIM cases from hearsay rules?
NO. the usual rules of evidence concerning hearsay apply in a CRIM case.
Are there any differences between the FRE and CALI on hearsay.
YES. CALI only recognizes exceptions to hearsay and does not have exemptions such as admissions by a party opponent. (this would be an exception to hearsay in CALI and thus admissible).
C/F both allow vicarious party admissions by employee if statement concerned matter within scope of employment. How is CALI narrower than the FRE?
Statement is admissible only where that employee was the basis for the employer's negligence (i.e. the employee is one at fault).
PIS of W is not hearsay if offered to impeach. F recognizes for truth if under oath. How does CALI treat PIS of W.
CALI- PIS of W is hearsay w/in an exception is admissible whether or not under oath. (F-must be under oath to be admissible).
Pior consistent statement of W testifying at trial is admissible in F/C if made before bribe or inconsistent statement.
F-not hearsay due to exemption.

CEC- hearsay, but admissible under exception.
Declaration against interest F/C: UNAVAILABLE declarant that made statement against penal or financial interest of the declararnt (at time of statement). How does CALI go further?
CALI- exception includes statements against social interest that would make declarant the object of hatred, ridicule or social disgrace in the community.
Unavailable declarant: F/C if W is dead, sick, exempt from privilege, declarant's presence can't be procured by R means.
CALI: fear of testifying also renders a declarant "unavailable"
Former testimony exception applies F/C where party against whom testimony is offered had oppty to examine the W, and motive was similar as it was now. How do F/C differ?
F- if party against whom T is offered was not a party, must be privity between predecessor in interest.
CALI- no privity required, if earlier party had similar interest to conduct the examination and; if the evidence was entered-in the previous setting- by the party it is being offered against or against a successor in interest to that person.
How does the dying declaration exception (statement by someone about to die describing circumstances leading to death) differ in F/C?
F- declarant must be unavailable, need not die; admissible in civil action and a homicide prosecution.

CALI- any CIVIL or CRIM case, but declarant must be dead
How is the CALI Present Sense Impression exception to hearsay narrower than the fed rules?
DECLARANT need not be unavailable.

F-declarant made statement while perceiving or immediately thereafter.

CALI- must be a statement explaining the declarant's conduct while the declarant is engaged in that conduct.
What is the OJ exception?
Related to present sense exception, this is an exception to the confrontation clause (testimonial hearsay) because it allows a statement concerning an injury or threat made to police or medical professionals under trustworth circumstances.
Is the excited utterance exception the same for F/C?
Yes, and declarant need not be unavailable.
Is the existing mental and physical condition exception the same for F/C?
Yep.
Exception for statement of past or present mental condition made for medical diagnosis is narrower in CALI. How?
No need to show declarant unavailable.

CALI- statement is admissible only if it is a minor describing an act of child abuse or neglect.
ALSO: statement made not for medical diagnosis may be admissible to prove a condition where it is an element at issue in the case. (i.e. statement to hospital orderly about your bad back before the accident)
Business Records Exception under F/C allows record of events, conditions, opinions or diagnoses kept in course of regularly conducted business activity if matters were described by person with knowledge. How is CALI distinct.
Does not mention opinions or diagnoses, but will admit them if the record is trustworthy and the other elements are met.
How do C/F differ on public records exception/
CALI allows record made by a public employee if making the record was in the scope of duties, made at or near time, and circumstances indicate trustworthiness.

FRE- CRIM case, P can only use PR that describes policies of office, cannot use to show where record describes matters observed pursuant to duties prescribed by law or the record contains factual findings of an investigation made pursuant to duty granted by law.