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22 Cards in this Set

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Hearsay- CA- exempt from Prop 8 in both civil & crim cases, usual rules of evidence apply.
- Exemptions/Exceptions rule in CA:
While fed law has both exemptions to hearsay definition & exceptions to hearsay rule making hearsay admissible, CA has ONLY EXCEPTIONS.
Admission of Party Opponent
FRE & CEC: admission = statement by party, or someone whose statement is attributable to a party, offered by a party opponent.
FRE = exemption = nonhearsay
CEC = exception to hearsay
Vicarious Party Admissions
FRE & CEC: statement of authorized spokesperson for party treated as admission of that party.
FRE: statement by ee is party admission of eer if statement concerned w/i scope of emplmt during emplmt relationship.
CEC: statement by ee is party admission of eer ONLY where that ee's NEGLIGENT CONDUCT is basis for eer's liability in the case under respondeat superior.
Prior Inconsistent Statement of Witness
FRE & CEC: PIS not hearsay if offered just to impeach.
FRE: If given under oath, exemption to usual hearsay def & not hearsay even if offered to prove truth of facts asserted, otherwise hearsay & inadmiss to prove those facts.
CEC: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to ALL inconsistent statement of witness, whether or not under oath.
Prior Consistent Statement of Witness Now Testifying at Trial
FRE & CEC: Admissible if made BEFORE bribe or inconsistent statement. Not hearsay under FRE exemption to hearsay def; hearsay but w/i exception under CEC.
Declaration Against Interest Exception
FRE & CEC: Statement of unavailable declarant admissible if, at time made, against financial int of declarant or would've subjected her to crim liab.
FRE: In crim case, ev offered to exculpate D, D must offer corroborating circumstances showing declararant's statement is trustworthy.
CEC: Also w/i exception is a statement against social interest b/c risks making declarant object of hatred, ridicule, social disgrace in community (broader).
Declarant is UNAVAILABLE if:
FRE & CEC: court exempts declarant from testifying due to privilege, declarant is dead/sick, or proponent of statement cannot procure declarant's attendance by process or other reasonable means.
- FRE: 2 addt'l bases for unavailability: decl refuses to testify despite court order, decl's memory fails on subject of her statement.
- CEC: If decl suffers total mem loss or refuses to testify out of fear, CA regard decl as unavailable
Former Testimony Exception
- Testimony given in earlier proceeding or depo by a witness now unavailable is admissible in current proceeding if:
(FRE & CEC law and FRE law)
FRE & CEC: party against whom testimony is now offered was a party in earlier proceeding, had opportunity to examine witness, and its motive to conduct exam similar to now, or
FRE ONLY: (CIVIL case) party against whom testimony now offered was not a party in earlier proceeding but is a privity-type relationship w/ someone who was a party to that earlier proceeding & who had opportunity & interest to conduct exam similar to interests of the party against whom testimony now offered
Former Testimony Exception
- Testimony given in earlier proceeding or depo by a witness now unavailable is admissible in current proceeding if:
(CA ONLY)
CA ONLY: (CIVIL case) party against whom testimony now offered was not a party in earlier proceeding but a party in that earlier proceeding had opp to examine witness & interest to conduct that exam SIMILAR to interests of party against whom test now offered, or
- former test offered AGAINST person who offered it in ev in her own behalf in earlier proceeding, or against a successor in int of such person.
Dying Declaration Exception
FRE: declaration by person who believes he is about to die & describes cause/circs leading to his death admissible in a civil action & homicide prosecution if decl unavailable (decl need not die).
CEC: applies in all civil & crim cases and decl MUST BE DEAD.
Present Sense Impression Exception
No need to show decl unavailable
FRE: statement describing/explaining event/condition made while decl was perceiving event or condition immediately thereafter.
CEC exception narrower: statement explaining CONDUCT of decl made while decl was engaged in that conduct.
Related CA Exception: Statement describing infliction or threat of physical abuse ("OJ Exception")
Statement made at/near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or med prof, under trustworthy circs. (watch out for Confrontation issue- statemt can't be to build case against D)
Excited Utterance Exception
FRE & CEC: statements relating to startling event/condition admissible when made while decl was still under stress of excitement caused by event/condition.
No need to show decl unavailable.
Exception for Declaration of then existing physical or mental condition
FRE & CEC: admissible to show condition or state of mind. But statement describing memory or belief is NOT admissible to prove fact remembered/believed.
Exception for statement of past or present mental or physical condition made for diagnosis or treatment
No need to show decl unavailable.
FRE: admissible if made for and pertinent to med diagnosis or treatment.
CEC (exception narrower): admissible if made for med diagnosis or treatment, BUT ONLY IF DECL is a MINOR describing act of child abuse/neglect.
Related CA Exception (to Exception for statement of past or present mental or physical condition made for diagnosis or treatment)
A statement of decl's past physical or mental condition, incl statement of intention, admissible to prove that cond, if it is an issue in the case.
- No requirement that statement be made for med purposes. Decl must be unavailable.
Business Records Exception
- record of events, conditions, {opinions or diagnoses} kept in course of regularly conducted biz activity
No need to show decl unavailable.
FRE: admissible if made at or near time of matters described, by person w/ knowledge of facts & was regular practice of biz to make such record. Ct may exclude if untrustworthy.
CEC: exception doesn't refer to opinions or diagnoses, but cuts will admit SIMPLE opinions & diagn: admissible if made at or near time of matters described, by a person w/ knowledge of facts in that record, & record is trustworthy.
Public Records Exception
- record of a public office
No need to show decl unavailable.
FRE: admiss if if is w/i ONE of these: 1) describes activities of office, 2) describes matters observed pursuant to duty imposed by law, 3) contains factual findings resulting fr investigation made pursuant to authority granted by law (unless untrustworthy). In crim case, P cannot use 2 or 3.
CA does not place same restrictions on P: record made by pub ee is admiss if making record was w/i scope of her duties, record was made at or near time of matters described, & circs indicate trustworthiness.
Exception for judgment of conviction
No need to show decl unavailable
FRE: felony conviction admiss in both civil & crim cases to prove any fact essential to the judgment, but when offered by P for purposes other than impeach, judgments against persons other than accused are INadmiss.
CA: spec exception for convictions applies ONLY TO CIVIL cases. But Prop 8 permits P or D in crim case to impeach a witness using a crim conviction if it involves MT. Certified copy of judgment of convict admiss under CA Pub Records exception in both civil & crim cases.
Authentication:
- Ancient Docs
If doc is (Fed 20, CA 30) yrs old or more, does not on its face present irregularities, and was found in a place of natural custody, authenticity established.
Best Evidence Rule
CA: "Secondary Evidence Rule"- exempt from Prop. 8 (so applies in crim & civil cases)
FRE: duplicates (coy of original produced by same impression that produced orig or by a machine) usually admissible (no handwritten notes).
CEC: admits duplicates and other written evidence of contents of orig, such as handwritten notes.
Best Evidence Rule
- What testimony admiss to prove contents of writing?
FRE & CEC: testimony regarding contents of writing may be admiss where original lost or destroyed, unless bad faith by proponent of testimony.