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Evidence

Evidence

by namaraweera, Jan. 2015

Subjects: FRE w/ CEC Distinctions

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69 Cards in this Set

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	CEC Introduction	California Evidence Code (CEC) In a criminal case, mention the “Truth in Evidence” amendment to California Constitution (Prop 8). This makes all relevant evidence admissible in a criminal case even if it’s objectionable under the CEC. Only constraint is the U.S. Constitution.
	Exceptions Prop 8	Exclusionary rules under U.S. Constitution (CC); Hearsay law; Privilege law; Limits on character evidence to prove D’s conduct; Limits on character evidence to prove victim’s conduct; The secondary evidence rule (CA’s BER); CEC 352 (court’s power to exclude evidence if unfair prejudice substantially outweighs probative value).
	CEC Approach	Approach: State all CEC objections; For each objection, mention if Prop 8 overrules the objection (Is evidence relevant? Does one of the exceptions to Prop 8 apply?); & If evidence seems admissible under Prop b, apply CEC 352 balancing test.
	Relevance	Definition is same as federal. CEC: the fact of consequence also must be in dispute. Example: D testifies that he shot victim. Prosecution wants to bring witness on the stand who saw the shooting. FER: Yes; CEC: No, not relevant (D already admitted to crime).
	Relevance Exclusions for Public Policy Reasons	Subsequent remedial measures or repairs; Settlements, offers to settle and related statements; Payments or offers to pay medical expenses; & Expressions of sympathy
	Relevance Exclusions for Public Policy Reasons Subsequent Remedial Measures or Repairs	FRE & CEC: inadmissible to prove negligence. FRE: evidence is inadmissible to prove defective design in a products liability action based on strict liability. CEC: evidence is admissible to prove defective design in a products liability action based on strict liability.
	Relevance Exclusions for Public Policy Reasons Settlements, Offers to Settle & Related Statements	FRE & CEC: inadmissible to prove liability or fault. CEC: discussions during mediation proceedings also in admissible.
	Relevance Exclusions for Public Policy Reasons Payments or Offers to Pay Medical Expenses	FRE & CEC: inadmissible when offered to prove liability for the injuries in class FRE: only excludes such statements if part of a settlement offer. CEC: also makes inadmissible admissions of a fact made in the course of making such payments or offers.
	Relevance Exclusions for Public Policy Reasons Payments or Offers to Pay Medical Expenses Examples	Example: “(1) I’ll pay your medical expenses. (2) I shouldn’t have dropped that banana peel on the floor: FRE: (1) is inadmissible. (2) is admissible; CEC: (1) & (2) are both inadmissible. Example: “If you sign a release, I will pay your medical bills. I shouldn’t have dropped that banana peel on the floor.” FRE & CEC both make entire statement inadmissible.
	Relevance Exclusions for Public Policy Reasons Expressions of Sympathy	CEC: In civil actions expressions of sympathy relating to suffering or death of an accident victim are in admissible. Does not include statements of fault. No comparable rule under FRE.
	Character Evidence Civil Cases	General rule: admissible to prove conduct. FRE: one exception (sexual assault/child molestation). CEC: no exceptions.
	Character Evidence Criminal Cases	Two major issues: is character evidence admissible to prove conduct of defendant or victim?
	Character Evidence Criminal Cases D's Conduct	FER & CEC: prosecution cannot be first to offer such evidence. Usually, prosecution me on the road but after defendant opens door by offering character evidence. What about specific acts on direct or cross? General rule: trial begins with the door closed. Direct examination I) FRE & CEC: reputation and opinion are OK, but not specific acts. Cross-examination I) FRE: all methods are admissible.  CEC: reputation and opinion only.
	Character Evidence Criminal Cases D's Conduct Exceptions	FRE & CEC: sexual assault or child molestation; FRE only: where court admits evidence of victim’s character (violence, dishonesty, etc.) offered by accused, prosecution may offer evidence that accused has same character trait; CEC: domestic violence or elder abuse; & CEC: where court has admitted evidence of victim’s character for violence offered by accused, prosecution may offer evidence that accused has violent character (narrower than FRE).
	Character Evidence Criminal Cases Victim's Conduct	FRE & CEC: most of the same rules apply. Prosecution cannot be first to offer character to prove conduct (the trial begins w/ the door closed). I) FRE exception: in a homicide case, prosecution can be first to offer evidence that victim had peaceful character if D offers evidence victim attacked first. FRE & CEC: D can be first to offer character of victim to prove conduct, then prosecution may rebut (the door is open). I) FRE: reputation and opinion evidence admissible; no specific acts on direct, but OK on cross. II) CEC: all methods are admissible.
	Character Evidence Rape Shield Statute	Limits defense evidence of alleged victim’s character when offered to support defense of consent. CEC is similar to FRE.
	Testimonial Evidence Competency	FRE & CEC: witnesses must testify based on personal knowledge, have the ability to communicate, take an oath or make an affirmation to tell the truth, and claim to recall what they perceived. CEC: witness must also understand legal duty to tell the truth.
	Testimonial Evidence Competency Grounds for Disqualifying Witnesses	FRE & CEC: all witnesses are competent except for judge and jurors. CEC: witnesses who were hit me ties before trial to help refresh recollection are disqualified, except in a criminal case, witness hypnotized by police using procedures that protect against suggestive questions.
	Testimonial Evidence Expert Opinion FRE & CEC Similarities	FRE & CEC: five requirements for the admissibility. Opinion must be: Helpful to jury; Witness must be qualified; Witness must believe in opinion to reasonable degree of certainty; Opinion must be supported by a proper factual basis; & Opinion must be based on reliable principles reliably applied to the facts.
	Testimonial Evidence Expert Opinion FRE & CEC Differences	FRE (Daubert/Kumho standard): Reliability of scientific opinions determined by four factors: I) Publication/peer review; II) Error rate; III) Results are tested and there is ability to retest; & IV)Reasonable level of acceptance Nonscientific opinions: reliability determined by ad hoc looking at facts and circumstances of the case. CEC (Kelley/Frye general acceptance standard): Ppinion must be based on principles generally accepted by experts in the field. Standard is inapplicable to nonscientific opinions and medical opinions, reliability is based on facts and circumstances of the case.
	Witness Credibility Impeachment Impeachment by PIS of Witness Now Testifying at Trial	FRE & CEC: not hearsay if offered only impeach. FRE: if given under oath at trial or deposition, not hearsay to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts (hearsay exemption). CEC: hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath (hearsay exception).
	Witness Credibility Impeachment Impeachment by PIS of Witness Now Testifying at Trial Example	Example: P’s witness testifies that D ran a red light. On cross, D asks witness, “Isn’t it true that you told a police officer that D had a green light.” Witness answers, “Yes.” Relevant to impeach for truth. FRE: admissible to impeach, inadmissible for truth (no exception) CEC: admissible to impeach AND for truth. Still hearsay, but exception applies. All prior statements of witness are admissible to impeach and for truth. If statement of witness claiming that D had a green light was given under oath (under oath, trial, deposition) admissible to impeach and for truth under FRE & CEC.
	Witness Credibility Impeachment Impeachment w/ Prior Felony Conviction	FRE: all felonies involving false statement must be admitted, no balancing except for old convictions. Convictions for felonies not involving false statement may be admissible but court must balance. CEC: all felonies involving moral turpitude are admissible but court must balance. Felonies not involving moral turpitude are inadmissible. Prop 8 requires the crime to involve moral turpitude to be relevant for impeachment. Moral turpitude: Crimes of lying, violence, theft, extreme recklessness, or sexual misconduct, but not crimes for mere negligent or unintentional acts (negligence, involuntary manslaughter).
	Witness Credibility Impeachment Impeachment w/ Prior Misdemeanor Conviction	FRE: all misdemeanors involving false statement or admissible, no balancing except for old convictions. All other misdemeanor convictions are inadmissible to impeach. CEC: all misdemeanor convictions are inadmissible to impeach. But under Prop 8, misdemeanors can be admitted in a criminal case if it involves a crime of moral turpitude subject to balancing. Absolute bar on misdemeanor convictions to impeach in civil cases.
	Witness Credibility Impeachment Impeachment w/ Prior Misdemeanor Conviction CEC Approach	The CEC says misdemeanors are inadmissible; But Prop 8 makes all relevant evidence admissible in a criminal case; Therefore misdemeanor convictions involving moral turpitude may be admitted to impeach D in a criminal case; Court must apply the balancing test to see whether the unfair prejudice >> probative value.
	Witness Credibility Impeachment Final Points	FRE & CEC: if the conviction is admissible under the above rules, extrinsic evidence can be used to prove the conviction. FRE: if it’s been more than 10 years since the conviction or release from prison, it is inadmissible unless probative value > prejudice. CEC: no time limit on convictions, but courts balance all convictions regardless. If it’s been 10 years since conviction, the probative value will be extremely low.
	Witness Credibility Impeachment Non-conviction Misconduct Bearing on Truthfulness	FRE: admissible in civil and criminal cases, subject to balancing; must be act of lying; extrinsic evidence inadmissible but may ask witness about her misconduct on cross. CEC: inadmissible under CEC, but Prop 8 makes it admissible in criminal cases if relevant; to be relevant the misconduct must be act of moral turpitude; both cross-examination and extrinsic evidence permitted; subject balancing.
	Witness Credibility Impeachment Non-conviction Misconduct Bearing on Truthfulness Example	Example: P sues D for breach of K. D asks P on cross, “Isn’t it true that you lied on your driver’s license application.” P answers, “Yes.” FRE: Admissible CEC: Inadmissible under CEC. No conviction. Conduct unrelated to case. Prop 8 doesn’t apply to civil cases.
	Witness Credibility Impeachment Non-conviction Misconduct Bearing on Truthfulness Determining Admissiblity	When determining admissibility of a non-conviction misconduct bearing on truthfulness, apply CEC approach to misdemeanor conviction to impeach defendant. The CEC says non-conviction misconduct bearing on truthfulness is inadmissible; But Prop 8 makes all relevant evidence admissible in a criminal case; Therefore non-conviction misconduct bearing on truthfulness involving moral turpitude may be admitted to impeach D; Court must apply the balancing test to see whether the unfair prejudice >> probative value.
	Hearsay	Hearsay law is exempt from the Truth in Evidence amendment (Prop 8). Therefore in criminal cases, usual rules of evidence apply.
	Hearsay Exemptions/Exceptions	California law only has exceptions, no exemptions.
	Hearsay Exceptions Admission of a Party Opponent - CEC (Opposing Party Statement - FRE)	Admission of a party opponent (opposing party statement in FRE). FRE & CEC: admission = statement by party, or someone who statement is attributable to a party, offered by a party opponent.
	Hearsay Exceptions Vicarious Party Admissions	FRE & CEC: statement of party’s authorized spokesperson is admission of party. FRE: statement by party’s employee is party admission (opposing party statement) of employer if within scope of employment and made during employment relationship. CEC: statement by party’s employee is party admission of employer only where negligent conduct of employee is basis for employer’s liability under respondeat superior (employer is responsible for employee’s words only if also responsible in tort law for employee’s conduct). I) Employer liable for employee’s tort = vicarious admission. II) Employer not liable for employee’s tort ≠ vicarious admission.
	Hearsay Exceptions Vicarious Party Admissions Examples	Example: P testifies that when UPS driver drove through her bedroom, he stated, “I fell asleep at the wheel.” FRE: Nonhearsay. Vicarious party admission. Concerns matter within scope of employment. CEC: Hearsay exception apples. Driver was negligent and UPS liable under respondeat superior, therefore liable for the Driver’s statement as well. Example: Same case except driver acted properly and accident was due to faulty brakes. Driver said, “Sometimes the company mechanic forgets to check the brakes.” FRE: Nonhearsay. Vicarious party admission. Concerns matter within scope of employment. CEC: Not within hearsay exception. Driver was not negligent, therefore not liable for the statement.
	Hearsay Exceptions Witness PIS	FRE & CEC: PIS not hearsay if offered to impeach. FRE: if given under oath, exemption to usual hearsay definition and not hearsay even if offered to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts. CEC: hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath.
	Hearsay Exceptions Prior Consistent Statement of Witness Now Testifying at Trial	Admissible under both FRE & CEC if made before bribe or inconsistent statement. FRE: hearsay exemption. CEC: hearsay exception.
	Hearsay Exceptions Declaration Against Interest Exception	FRE & CEC: A statement by unavailable the declarant is admissible if, at the time it was made, it was against financial interest of declarant or would’ve subjected declarant to criminal liability. FRE only: in a criminal case, evidence offered to exculpate defendant must be supported by corroborating circumstances. CEC only: exception also applies for statements against social interests.
	Hearsay Exceptions Unavailable Declarant	FRE & CEC: declarant is unavailable if court exempts declarant from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarant’s attendance by process or other reasonable means. FRE: declarant refuses to testify despite court order, or declarant’s memory fails on the subject of her statement CEC: declarant suffers total memory loss or refuses to testify out of fear.
	Hearsay Exceptions Former Testimony	Testimony given in earlier proceeding or deposition by witness now unavailable is admissible in current proceeding if: FRE & CEC: party against whom testimony is offered was a party in the earlier proceeding, that opportunity to examine, and similar motives. FRE only: in a civil case, party against him testimony is now offered was not a party in the early or proceeding but is in a privity-type relationship with someone who was a party to that earlier proceeding (predecessor in interest) and had an opportunity and interest to conduct the exam similar to the interest of the party against whom testimony is now offered. CEC only: same as above but no privity-type relationship required. CEC only: the former testimony is offered against the person who offered it in evidence in her own behalf in the earlier proceeding, or against the successor in interest of such person
	Hearsay Exceptions Former Testimony Related CA Law	Deposition testimony given in the same civil action in which the hearsay is offered is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse. Otherwise the former testimony exception does not apply.
	Hearsay Exceptions Former Testimony FRE Predecessor in Interest v. CEC Similar Interest Standards	Example: airplane crashes, killing passengers X and Y. The estate of X sues for wrongful death and expert testifies for airline in that case. Expert then dies. The estate of Y now sues airline and airline offers transcript of expert’s testimony. FRE: Not admissible. X and Y are not in privity. CEC: Admissible under similar interest rule. Interests of X and Y are the sufficiently similar.
	Hearsay Exceptions Former Testimony Former Testimony Offered Against Party Who Offered it in Previous Proceeding	Example: airplane crashes, killing passenger Y. X sues for private nuisance. Expert testifies in case for airline. Expert dies. Estate of Y sues airline for wrongful death and offers expert’s testimony against airline. FRE: Not admissible. No privity. Motive is different. No opportunity for estate of Y. CEC: Admissible under similar interest rule. Former testimony is offered against party who offered it in the first case. Motives were different (private nuisance v. wrongful death) but admissible nonetheless.
	Hearsay Exceptions Dying Declaration	FRE: declaration by person who believes he is about to die and describes cause/circumstances leading to his death is admissible in a civil action and in a homicide prosecution if declarant is unavailable. Declarant need not die. CEC: exception applies in all civil and criminal cases and declarant must be dead.
	Hearsay Exceptions Present Sense Impression	No need to show declarant unavailable. FRE: a statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. CEC: exception is narrower. A statement explaining conduct of the declarant made while declarant was engaged in that conduct.
	Hearsay Exceptions Present Sense Impression Example	Example: in a murder prosecution D claims self-defense, claiming Victim acting in a threatening manner. Witness testifies he was on the phone w/ Victim and she said, “(1) Joe (D) just walked in the room and I’m smiling and waving at him. (2) Now he wants to show me his hunting knife.” FRE: (1) and (2) are both admissible. FRE present sense impression exception is broad. Declarant is describing something while simultaneously perceiving it. CEC: Statement (1) not admissible b/c it’s describing someone else’s conduct. Statement (2) is admissible under CEC present sense impression exception b/c it describes declarant’s own conduct.
	Hearsay Exceptions Present Sense Impression Related CA Exception	Statement describing inflection or threat of physical abuse (OJ exception) (watch out for CC issues if testimonial) Statement made at or near time of injury or threat; By unavailable declarant; Describing or explaining infliction or threat; In writing or recorded or made to police or medical professional; Under trustworthy circumstances.
	Hearsay Exceptions Excited Utterance	FRE & CEC: statements relating to startling event or condition are admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable.
	Hearsay Exceptions Exception for Declaration of Then Existing Physical or Mental Condition	FRE & CEC: the statement of the declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed.
	Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for Diagnosis or Treatment	No need to show declarant unavailable. FRE: admissible if made for and pertinent to medical diagnosis or treatment. CEC (narrower): admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect.
	Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for Diagnosis or Treatment Related California Exception	A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case – no requirement that statement be made for medical purposes. Declarant must be unavailable.
	Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for Diagnosis or Treatment Related California Exception Example	Example: plaintiff told a second patient in the emergency room, “I was feeling fine before the accident.” If plaintiff is now in a coma, can the other patient testify as to what plaintiff said? FRE: No FRE exception applies. Not made for medical diagnoses or treatment. Exception for declaration of then existing physical or mental condition doesn’t apply b/c P is talking about a past condition (“I was feeling fine before the accident”). CEC: admissible under this exception.
	Hearsay Exceptions Business Records	No need to show declarant unavailable. FRE: Record of events, conditions, opinions or diagnosis kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by person with knowledge of the facts, and it was regular practice of business to make such record. Court may exclude if untrustworthy CEC: Record of events [or] conditions opinions or diagnosis kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by person with knowledge of the facts (and it was regular practice of business to make such record. Court may exclude if untrustworthy) [in that record, and record is trustworthy]. I) But still extend to simple opinions and diagnosis.
	Hearsay Exceptions Public Records (FRE)	FRE: Hearsay record of a public office is admissible if within one of the following categories: Record describes activities and policies of the office; Record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy (cannot be used in a criminal investigation). No need to show declarant unavailable.
	Hearsay Exceptions Public Records (CEC)	CEC: Record made by public employee is admissible if making record was within the scope of her duties, record was made at or near the time of the matters described, and circumstances indicate trustworthiness. No prosecutorial limitation like w/ the FRE.
	Hearsay Exceptions Exception for Judgment of a Conviction	No need to show declarant unavailable. FRE: a felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. CEC: only applies in civil cases. Prop 8 doesn’t change this hearsay exception. But, a certified copy of the judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.
	Hearsay Exceptions Exception for Judgment of a Conviction Example	Example: D denies being a convicted felon on the stand. Prosecution offers into evidence certified copy of judgment for conviction of robbery. FRE: admissible under the exception for judgment of a conviction. CEC: inadmissible under the exception for judgment of a conviction (applies to civil cases only). But, possibly admissible under the public records exception.
	Writing and Other Physical Evidence Authentication Ancient Documents	If document is (FRE 20, CEC 30) years old or more, has no facial irregularities, found in a place of natural custody, authenticity is established.
	Writing and Other Physical Evidence Authentication Self-Authenticating Writing	FRE & CEC: certified copies of public documents (deeds), acknowledged documents, official publications (gov’t pamphlets), newspapers, or periodicals FRE: business records and trade inscriptions.
	Writing and Other Physical Evidence Best Evidence Rule (Secondary Evidence Rule in CA)	Exempt from Prop. 8 in CA. Even in a criminal case, the Secondary Evidence Rule applies. Applies only where evidence is offered to prove the contents of a writing. Requires proof of contents with original, but with many exceptions. Other than the original, what tangible evidence is admissible to prove contents of writing? I) FRE: Duplicates usually also admissible. II) CEC: admits duplicates and other written evidence of contents of original, such as handwritten notes. When his testimony admissible to prove contents of a writing? I) FRE & CEC: testimony regarding contents of writing maybe admissible where lost or destroyed, unless bad faith by proponent of testimony.
	Privileges	FRE: in a civil suit brought in federal court under diversity jurisdiction, state privilege law applies. CEC: most privilege log is exempt from coverage of Truth in Evidence Amendment to California Constitution.
	Privileges Attorney-Client	FRE & CEC: attorney-client (or their representatives) communication intended by the client to be confidential and made for legal services is privileged unless waived by the client. FRE: privilege survives death of client. CEC: privilege ends once the state of the client is distributed an executor of estate is discharged.
	Privileges Communication from a Heart for employee to the corporations attorney	FRE: privilege applies to communications from employee/agent if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporation. CEC: privilege applies to communications from employee/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter, or employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened. I) No real difference from FRE. FRE & CEC: no privilege for mere witness who happens to be an employee. I) Corporate employee is not involved in accident/incident.
	Privileges Communication from a Heart for employee to the corporations attorney Exceptions	FRE & CEC: privilege does not apply where: Professional services were not sought to further crime/fraud; Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another; OR Communication relates to alleged breach of duty between lawyer and client. I) CEC additional exception: lawyer reasonably believes disclosure is necessary to prevent a crime likely to cause death or substantial harm.
	Privileges Communication from a Heart for employee to the corporations attorney Exceptions Example	Example: Client meet w/ attorney asking about tax shelters b/s he’s about to inherit a lot of money since his parents will soon suffer from a “fatal accident.” FRE: communication (not admissible) is privileged b/c the services were not sought to further the crime (killing his parents). CEC: not privileged (admissible) b/c disclosure is necessary to prevent death or substantial harm.
	Privileges Doctor/Psychotherapist-Patient	FRE: there is a psychotherapist-patient privilege but not a doctor-patient privilege. CEC: both privileges exist.
	Privileges Doctor/Psychotherapist-Patient Exceptions	FRE & CEC for both privileges: Where the patient puts his physical/mental condition in issue (personal injury); Where professional services were sought to aid in crime/fraud or to escape capture after a crime/tort; In a case alleging breach of duty between patient and doctor or psychotherapist (malpractice). CEC: Psychotherapist privilege does not apply if there is reasonable cause to believe patient is a danger to himself or others, and disclosures is necessary to end the danger; Doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office.
	Privileges Spousal	Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything. FRE & CEC: spousal confidential communication privilege may apply in any case and protects confidential spousal communications during marriage. FRE: applies only in criminal cases. CEC: applies in civil and criminal cases (spouse cannot even to be called to witness stand).
	Privileges Other CA Privileges	Counselor and a victim of sexual assault or domestic violence. Penitent-clergy. Immunity from contempt of court for news reporters who refuse to disclose sources.
	Judicial Notice	FRE & CEC: party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice. CEC exception: whether requested or not, court must take judicial notice of matters generally known within the jurisdiction. FRE: if court takes judicial notice in civil case, courts instructs jury that it must accept judicially noticed fact. In criminal case, or instructs jury it may except judicially noticed fact but is not required to do so. CEC: court instructs jury that it must accept judicially notice fact in both civil and criminal cases.

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