California - Evidence Distinctions

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Prop. 8 - CA Constitution

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1) Comes up ONLY in a CRIMINAL case.

2) All relevant evidence admissible in a criminal case, even if it is objectionable under the CEC

3) Exceptions (listed on pg. 49) - not overruled by Prop. 8

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3 Step approach - CA Evidence

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1) raise all objections under CEC

2) for each objection, mention if Prop 8 overrules the objection (is it relevant?) Does an exception to P8 apply?

3) if evidence seems admissible under P8 balance under CEC 352

**criminal cases

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Relevance

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same for FRE and CEC - relevant, to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/out hte evidence

*CA - the fact of consequence also must be in dispute

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Sub remedial measures or repairs

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Mostly the same (safety measure/ repairs) - not to prove neg.;

*fed - such evidence is also admissible to prove defective design in a products liability action based on theory of SL.

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Settlements, offers to settle and related statements

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*both - inadmissible to prove fault/liability

CA - discussions during mediation proceedings also inadmissible

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Payment or offers to pay medical expenses

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Both - inadmissible when offered to prove liability for the injuries in question

CA - inadmissible admissions of fact made in the course making such payments or offers

Fed - only excludes such statements if part of a settlement offer

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Expressions of sympathy

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CA only - makes inadmissible in civil actions expressions of sympathy relating to suffering or death of an accident victim. but statements of fault made in connection w/ such an expression are not excluded. No comparable Fed rule.

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Pleas later withdrawn, offers to plea, and related statements

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Both - inadmissible

*P8 - maybe, not sure, but discuss anyway in essay, unfair prejudice

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Character evidence - civil cases

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Inadmissible to prove conduct, BOTH

CA - no exceptions

Fed - where claim is based on sexual assault or child molestation - prior acts of D are admissible to prove D's conduct in the case.

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Character evidence - criminal cases

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Both - Prosecution cannot be first to offer such evidence. No change.

Exceptions (pg.52)

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Open victim's character - when?

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1) D claims victim is violent - Fed: allowed, same trait

2) CA - also admissible, victim is violent - opens door for pros to offer evidence of D's violent character

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Direct/Cross examination - what methods allowed

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FRE/CEC - only rep/opinion no specific instances

Cross - all allowed under FRE, doesn't matter in CEC, unless Prop 8/ 352 balance

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Admissibility of evidence of victim's character to prove his conduct

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Both - most of the same rules; pros cannot be first to offer character to prove conduct.

Fed - exception to homicide case, victim was peaceful

CA - P8, victim's character relevant?

D can be first to offer character of victim to prove conduct, pros can rebut

FRE - rep/opinion evidence admissible; no specific instances on direct, but OK on cross.

CA - rep/opinion/specific instances permitted on both direct and cross

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Rape shield statute

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Limits defense evidence of alleged victim's character when offered to support defense of consent. CA rule is similar to Fed. P8 does not apply to evidence barred by this rule.

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Testimonial Evidence

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both - require W testify based on PERSONAL KNOWLEDGE, have ability to communicate, take an oath/affirmation and claim to recall what they perceived.

CA - W also must understand legal duty to tell the truth.

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Grounds for disqualifying W

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Both - all W are competent except for judge and jurors.

CA - disqualify W who have been hypnotized to help refresh recollection except, in criminal case, W hypnotized by police using procedures that protect against suggestion.

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Expert opinion

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generally the same.

Different in reliability principles expert opinion is based on - CA - (one factor) - opinion must be based on principles generally accepted by experts in the field. Standard is not altered by P8 b/c it is a standard of relevance, which requires general acceptance.

**CA standard NOT applicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.

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Learned Treatise

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FRE - admissible to prove anything if treatise is accepted authority in field.

CA - only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.

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Impeachment of W's credibility

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Prior inconsistent statement of W now testifying at trial.

Both - not hearsay if offered only to impeach.

Fed - given under oath at trial or depo, also not hearsay to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.

CA - hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of W, whether or not under oath

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Impeachment w/ Prior Felony Conviction

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Fed - all felonies involving false statement (perjury, forgery, fraud) are admissible...no balancing of unfair prejudice against probative value except for old contictions.

CA - all felonies involving moral turpitude are admissible but court must balance; P8 - does not make such felonies admissible b/c convictions must involve a crime of moral turpitude to be relevant for impeachment

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Moral turpitude

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crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts.

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Impeachment w/ prior MISDEMEANOR convictions

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Fed - all misdemeanors involving false statement are admissible...again there is no balancing of unfair/prob value except for old convictions. All other misdemeanor convictions are inadmissible to impeach.

CA - misdemeanor convictions inadmissible to impeach. P8 - can be, if involving a crime of moral turpitude, subject to balance. BUT not allowed in civil case.

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Conviction evidence - felony/misdemeanor (final points)

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If the conviction is otherwise admissible under the above rules, extrinsic evidence can be used under Fed and CA law to prove the conviction.

more than 10 years since the conviction or release from prison (whichever is later), inadmissible under Fed, unless prob value outweighs prejudice

CA - no such rule, consider prob value (pg. 58)

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Non-conviction Misconduct bearing on truthfulness

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Fed - admissible in civil and criminal cases, subject to balancing - act of lying, ex evid. inadmissible, but can be asked on cross.

CA - inadmissible, but P8 makes it admissible in criminal cases if relevant; relevant - misconduct must be act of moral turpitude - both c/e and x/e permitted, subject to balance.

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Hearsay

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CA - exempt from coverage of Truth in evidence amendment to CA constitution (P8) - usual rules.

**CA only has exceptions, just calls the nonhearsay/not hearsay as exceptions

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Admissions of party opponent

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statement by party, or someone whose statement is attirbutable to a party, offered by a party opponent.

Fed - exemption to usual hearsay def.

CA - hearsay but admissible under exception in CA

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Vicarious party admissions

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Both - statement of authorized spokesperson for party is treated as admission of that party.

Fed - statement by employee of party is party admission of employer if statement concerned matter w/in scope of employment and made during employment relationship

CA 0 statement by employee of party is party admission of employer only where neg conduct of that employee is basis for employer's liability in the case under respondeat superior - means, employer is responsible for employee's words only if also responsible b/c of that employee's conduct (responsible in tort)

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Prior Inconsistent Statement of W

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Both - PIS not hearsay if offered to impeach

Fed - given under oath, exemption to usual hearsay def. and not hearsay even if offered to prove truth of facts asserted, otherwise h/s and inadmissible to prove those facts

CA - hearsy if offered to prove facts asserted, under exception, which extends to all PIS of W, whether or not under oath.

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Prior Consistent statement of W

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timing issue - FRE exemption; CA exception ***same rule though.

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Declaration of interest exception

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Both - statement by unavailable declarant or would have subjected dec to criminal laibility

Fed - in a crim case, evid offered to exculpate D ( a confession of an unavail dec) D must offer "corroborating circumstances" showing that the dec's satement is trustworthy.

CA - also w/in the exception is a statement against social interest b/c it risks making dec an object of hatred, ridicule, or social disgrace in the community

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Former Testimony exception

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see pg. 61

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Dying declaration exception

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CA - must be dead

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Present sense impression

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*no need to show dec unavailable.

Fed - describe/perceive

Fed - a statement explaining conduct of the declarant made while the declarant was engaged in that conduct.

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Exception for statement of past or present mental or physicla condition made for diagnosis or treatment

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Fed - a statement describing past or present metnal or physical odncition of the declarant or of another person is admissible if made for and pertinent to medical diagnosis or treatmenet

CA - ONLY if the declarant is aminor describing an act of child abuse/neglect.

**

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Business Records

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Fed - same

CA - does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses: a record of events or conditions kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by a person w/ knowledge of the facts in that record, and record is trustworthy.

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Public records

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Fed - same

CA - Record made by a public employee is admissible if making record was within scope of duties, record was made at or near the time of the matters described, and circumstances indicate trustworthiness.

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Exception for judgment of conviction

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*no need to show dec. unavail

Fed - same

CA - the specific exception for convictions applies ONLY in civil cases - P8 permits the prosecutor or D in a criminal case to impeach a W using a criminal conviction involving moral turpitude. Further, a certified copy of a judgment of conviction is admissible under the CA public records exception in both civil/criminal cases.

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Authentication - ancient documents

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F - 20 years
CA - 30 years

or more does not on its face present irregularities, and was found in aplce of natural custody - authen estb

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BER - CA "Secondary Evidence Rule"

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Exempt from P8 criminal cases.

Only where evidence is offered to prove the contents of a writing.

require - contents of original; exception:

1) duplicate - in CA allows handwriting duplicates.

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Privilege - common in CA

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privilege does NOT aply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm

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Judicial Notice

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CA - whether requested or not, court must take judicial notice of matters generally known w/in jxn.

CA - instructions - must accept judicially noticed fact in both civil and criminal cases.