Evidence -- Cbx

Front 1

When is evidence relevant?

Back 1

When it has any tendency 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 without the evidence

CA: The fact of consequence must also be in dispute

Front 2

CA Prop 8

Back 2

"Truth in Evidence Amendment." This makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC (the Constitution overrules the CEC).

Exceptions to Prop 8:|1. Exclusionary rules under US Constitution (e.g., the Confrontation Clause);|2. Hearsay law; 3. Privilege law; |4. Limits on character evidence about the victim in a rape case;|5. The rule prohibiting prosecution from offering evidence of defendant's character before defendant opens the door;|6. The secondary evidence rule (CA's Best Evidence Rule); and|7. CEC 352 (court's power to exclude if unfair prejudice substantially outweighs probative value

Front 3

Three-step approach for applying CA law on essay

Back 3

1. Raise all objections under CEC; |2. For each objections, mention if Prop. 8 overrules the objection;|3. If evidence seems admissible under Prop. 8, balance under CEC 352

Front 4

When should relevant evidence be excluded on public policy grounds and why? (4 + 2)

Back 4

1. Liability insurance;|2. Subsequent remedial measures or repairs;|3. Settlements (pleas), offers to settle (plea), and related statements;|4. Payment or offers to pay medical expenses

CA adds:|1. Expressions of sympathy;|2. Discussions during mediation proceedings

Front 5

Evidence of liability insurance is inadmissible when offered to prove what?

Back 5

1. culpable conduct; or|2. defendant's ability to pay a judgment

Front 6

Evidence of subsequent remedial measures is inadmissible when offered to prove what?

Back 6

1. culpable conduct; or|2. in products liability cases, defective product design (based on strict liability).

CA does not apply the policy to proof of defective product design

Front 7

What exceptions exist to the rule that settlements, offers to settle, pleas, and related statements are inadmissible to prove liability, fault, and guilt?

Back 7

1. Where no claim has yet been asserted at the time of settlement/offer to settle; and |2. Where there is no dispute as to liability or damages.

Front 8

Are statements made in relation to settlement, offers to settle, and pleas (as opposed to the actual settlement, offer to settle, or plea itself) admissible when offered to prove liability, fault, or guilt?

Back 8

No.

CA: The law is unclear as to whether Prop. 8 makes pleas later withdrawn, offers to plea, and related statements admissible. On an essay, raise the issue and mention that, even if Prop. 8 did apply, the court may still exclude it for unfair prejudice under CEC 352.

Front 9

Are statements made in relation to payment or offers to pay medical expenses (as opposed to the actual payment or offer to pay itself) admissible when offered to prove liability for the injuries in question?

Back 9

FRE: Yes.

CA: No, admissions of fact made in the course of making such payments or offers (FRE only excludes such statements if part of a settlement offer).

Front 10

What is the CA rule regarding the admissibility of evidence of expressions of sympathy

Back 10

California makes inadmissible in civil actions expressions of sympathy relating to suffering or death of an accident victim. But statements of fault made in connection with such an expression are not excluded.

Front 11

What are the common bar exam scenarios where similar occurrences involving people or events other than those at issue in the current case are relevant?

Back 11

When the similar occurrence:|1. indicates causation;|2. indicates a pattern of fraudulent claims;|3. indicates a preexisting injury;|4. indicates intent;|5. rebuts a defense of impossibility; and|6. establishes the value of property (similar property, similar area, same time; mere offers mean nothing, but if made by a party can be used against him as an admission)

Front 12

How can habit evidence be identified?

Back 12

It is an objective description of a person's frequent, specific conduct and makes no moral judgment

Front 13

What questions should you consider when determining whether character evidence is admissible?

Back 13

1. For what purpose is the character evidence offered?|2. What method or technique is being used to prove character?|3. Is the case civil or criminal?|4. Does the evidence prove a pertinent character trait?

Front 14

Ignoring admissibility, what are the purposes for which character evidence might be offered?

Back 14

1. To prove character because character is an issue in the case;|2. To prove character as circumstantial evidence of a person's conduct on the occasion in question;|3. To impeach or support a witness' credibility.

Front 15

What is the federal exception that makes character evidence admissible to prove conduct in civil cases?

Back 15

Where the claim is based on sexual assault or child molestation; in such a case, defendant's prior acts of sexual assault or child molestation are admissible to prove defendant's conduct in this case

This exception does not exist in CA

Front 16

In criminal cases, when may the prosecutor generally admit evidence of the victim's character?

Back 16

When defendant opens the door to evidence of the victim's character. FRE only: door to V's peaceful character (but not D) opens if D merely accused V of being attacker in a homicide case.

Prop. 8 does not change requirement that D be the one to open the door.

Front 17

In a criminal case, when may the prosecutor admit evidence of defendant's character to prove defendant's conduct before the defendant has opened the door?

Back 17

1. In cases of sexual assault or child molestation, prosecutor may offer evidence that defendant committed other acts of sexual assault or child molestation;|2. FRE: Where court has admitted evidence of the victim's character offered by defendant, prosecutor may admit evidence that defendant has the same character trait

CA adds:|1. In prosecution for crime of domestic violence or elder abuse, prosecution may offer evidence that defendant committed other acts of domestic violence; and|2. Where court has admitted evidence of victim's character for violence ONLY offered by accused, prosecution may offer evidence that accused has violent character (a narrower version of the FRE rule)

Front 18

In a criminal case, once the door is open, what methods may be used to prove defendant's character on direct examination?

Back 18

FRE: Only reputation and opinion, not specific instances.

CA: Only reputation and opinion, not specific instances; but Prop. 8 makes it all admissible, subject to CEC 352 balancing

Front 19

In a criminal case, once the door is open, what methods may be used to prove defendant's character on cross examination?

Back 19

FRE: Reputation, opinion, and specific instances. May inquire about arrests to test witness's knowledge.

CA: Only reputation and opinion, not specific instances; but Prop. 8 makes it all admissible, subject to CEC 352 balancing

Front 20

Specific instances of defendant's bad conduct may be admitted to prove anything other than character that is relevant, such as

Back 20

1. Motive;|2. Intent;|3. Mistake (absence of mistake);|4. Identity;|5. Common Plan or Scheme

Can still be excluded if admission would result in unfair prejudice. Prosecutor must give notice.

Front 21

What actions by a criminal defendant open the door to evidence of victim's character to prove victim's conduct?

Back 21

FRE: 1. defendant offers evidence of victim's character;|2. in a homicide case, defendant offers evidence that victim attacked first (allows showing V's peacefulness).

CA: 1. defendant offers evidence of victim's character;|2. Prop 8 (if the evidence of victim's character is relevant, it is admissible, subject to CEC 352 balancing). FRE #2 above does not apply.

Front 22

What happens when criminal defendant offers evidence of a character trait in victim to prove victim's conduct?

Back 22

Defendant opens the door, allowing prosecutor to admit evidence to rebut that trait in victim and to show that defendant has that same trait.

Same in CA, but only evidence of violence of V will open door to evidence of same trait in D.

Front 23

In a criminal rape case, what types of character evidence are admissible to show victim's character and for what purpose?

Back 23

Only specific instances may be used, and only to show|1. third party is the source of semen or injury; or|2. prior acts of consensual intercourse between defendant and victim.

CA: Rape shield statute makes inadmissible opinion evidence, reputation evidence, and evidence of specific instances of the victim's sexual conduct to prove consent; prior acts of consensual intercourse between defendant and victim are still admissible; Prop. 8 does not apply to evidence barred by this rule

Front 24

In a civil rape case, what types of evidence are admissible to show victim's character and for what purpose?

Back 24

Specific instance, opinion, and reputation all admissible if probative value substantially outweighs unfair prejudice and, in case of reputation evidence, victim put her reputation in issue.

Front 25

In a criminal case, once the door is open, what methods may be used to prove victim's character on direct examination?

Back 25

FRE: Only reputation and opinion, not specific instances.

CA: Reputation, opinion, and specific instances

Front 26

In a criminal case, once the door is open, what methods may be used to prove victim's character on cross examination?

Back 26

FRE: Reputation, opinion, and specific instances

CA: Reputation, opinion, and specific instances

Front 27

What qualifies a witness as competent to testify?

Back 27

1. Personal knowledge;|2. Ability to communicate; |3. Must take an oath or make an affirmation to tell the truth; and|4. Recollection

CA: Witness must also be able to make herself understood.

Front 28

What categories of people are absolutely disqualified from testifying?

Back 28

Judge and jurors in the present case.

CA: They can testify if no objection. Also disqualifies witnesses who have been hypnotized to help refresh recollection, except, in a criminal case, witness hypnotized by police using procedures that protect against suggestion.

Front 29

What objections exist to the form of questions or testimony?

Back 29

Clowns Use Live Animals And Costumes = |1. calls for narrative;|2. unresponsive;|3. leading;|4. assumes facts not in evidence;|5. argumentative, and |6. compound

Front 30

When is an objection of "argumentative" appropriate?

Back 30

When counsel makes an argument disguised as a question.

Front 31

What is the appropriate objection whenever a witness reads a document into evidence?

Back 31

Hearsay.

Front 32

What are the consequences of refreshing a defendant's memory?

Back 32

Anything used to refresh may be inspected and offered into evidence by opposition.

Front 33

When is it appropriate to admit a recorded recollection into evidence?

Back 33

1. witness once had personal knowledge;|2. document was made by witness, under his direction, or adopted by him;|3. document prepared or adopted while witness's memory was fresh;|4. the document was accurate when made; and|5. witness now has insufficient recollection to testify re matters in document

Front 34

When is opinion testimony by a lay witness admissible?

Back 34

1. it's rationally based on;|2. witness's perceptions;|3. helpful to trier of fact; and|4. not be based on scientific or specialized knowledge.

Front 35

What are the specific types of lay opinion that are generally admitted?

Back 35

1. speed of auto;|2. sanity;|3. intoxication;|4. emotions; and|5. value of witness's property.

Front 36

What are the requirements for admissibility of expert opinion testimony?

Back 36

1. Opinion must be helpful to the jury;|2. Witness must be qualified;|3. Witness must believe in opinion to reasonable degree of certainty;|4. Opinion must be supported by a proper factual basis; and|5. Opinion must be based on reliable principles reliable applied to the facts.

May testify to ultimate issues except as to mental state in issue.

Front 37

How is the fifth factor of admissibility of expert opinion applied?

Back 37

Daubert: Reliability of scientific opinions determined by:|1. Publication/Peer review;|2. Error rate;|3. Results are tested and there is ability to retest; and|4. Reasonable level of acceptance (the reliability of non-scientific opinions is determined ad hoc looking at facts and circumstances of the case)

Frye: Reliability of scientific opinions determined by:|1. The opinion must be based on principles generally accepted by experts in the field; this standard is not altered by Prop. 8 because it is a standard of relevance and Prop. 8 only makes evidence admissible once it is relevant.

Front 38

What bases of information for expert testimony are appropriate?

Back 38

1. expert's personal knowledge;|2. evidence already admitted; or|3. inadmissible evidence normally relied on in the field.

Front 39

What is the learned treatise hearsay exception? Does it allow use for substance or only impeachment.

Back 39

Learned treatise is admissible to prove anything stated therein if it is an accepted authority in the field.

They can be used for cross-examination to impeach, but also for substance as long as an expert is on the stand at the time and it is read into evidence but not received as an exhibit.

CA: Very narrow exception; only admissible to show matters of general notoriety or interest, so it is almost never applicable

Front 40

When is a witness's prior consistent statement admissible?

Back 40

Only when witness's credibility is attacked and the consistent statement was made prior to the event alleged to have provided the motive for falsity; FRE: hearsay exemption

CA: Hearsay exception

Front 41

Can extrinsic evidence of a contradiction or Prior Inconsistent Statement be admitted to impeach a witness?

Back 41

Yes, except on a collateral matter. Witness must be given an opportunity to explain or deny the extrinsic evidence, either before or after it is presented unless it is a hearsay declarant rather than live witness that is being attacked.

Front 42

What is a collateral matter?

Back 42

A fact that is material to neither the case or the witness' credibility.

Front 43

When is a witness's prior inconsistent statement admissible? May extrinsic evidence be used?

Back 43

FRE: Admissible if offered only to impeach. If given under oath, exemption to hearsay and admissible to prove truth of facts asserted.

CA: Admissible if offered only to impeach. 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.

Extrinsic evidence may be used only if non-collateral issue and if foundation is laid by giving opportunity to explain or deny, even if after introducing the Prior Inconsistent Statement.

Foundation is not necessary if the person being impeached is an out-of-court declarant.

Front 44

When may a witness be impeached by evidence of a prior felony conviction involving false statement?

Back 44

FRE: Any time; but, if it has been more than ten years since judgment/release, it is inadmissible unless probative value outweighs unfair prejudice. Subject to balancing such that for D it is inadmissible if prejudice outweighs probative value. For non-D witnesses, prejudice must substantially outweigh probative value for exclusion.

CA: All felonies involving "moral turpitude" are admissible, but court must balance under CEC 352 (time considerations are used in balancing).

Front 45

When may witness be impeached by prior felony convictions not involving false statement?

Back 45

FRE: Felony convictions within the last ten years are admissible if relevant, but the court may exclude if unfair prejudice substantially outweighs probative value. If it has been more than ten years since judgment/release, it is inadmissible unless probative value outweighs unfair prejudice.

CA: Felonies not involving moral turpitude are inadmissible (Prop. 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment)

Front 46

When may witness be impeached by prior misdemeanor convictions?

Back 46

FRE: All misdemeanors involving false statements are admissible (no balancing, except for old convictions); all other misdemeanor convictions are inadmissible to impeach

CA; CEC makes misdemeanor convictions inadmissible to impeach; but, because of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude, subject to balancing under CEC 352 (this means that misdemeanors are inadmissible in CA to impeach in a civil case)

Front 47

When may a witness be impeached by non-conviction misconduct bearing on truthfulness?

Back 47

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 if in good faith. Arrests can't be asked about.

CA: Inadmissible under CEC, but Prop. 8 makes it admissible in criminal cases if relevant (i.e., an act of moral turpitude); both cross-examination and extrinsic evidence permitted, subject to balancing

Front 48

Common situations where out-of-court statement not offered to prove the truth of the matter asserted?

Back 48

1. Statement has independent legal significance;|2. Offered to show effect on listener;|3. Offered to show speaker's knowledge of facts stated;|4. Offered as circumstantial evidence of defendant's state of mind.

Front 49

List hearsay exemptions (considered non-hearsay, even though hearsay) and whether declarant must be unavailable.

Back 49

1. Admission by party-opponent;|2. Prior inconsistent statements given under oath;|3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence/motive; and|4. Statement of identification made after perceiving a person.

CA: These are all exceptions, not exemptions (no exemptions under the CEC)

Front 50

When is statement made by non-party still admissible as admission by party-opponent (vicarious admission)?

Back 50

When made by party-opponent's|1. expressly or impliedly authorized spokesperson; or|2. employee (a) concerning something in scope of employment (b) while employed;|3. When party-opponent adopts the statement;|4. Co-conspirator made the statement in FURTHERANCE of the conspiracy.

Relationship of declarant to party must be proven apart from the statement itself.

CA: Statement by employee of party is party admission of employer only where negligent conduct of that employee is basis for employer's liability in the case under respondeat superior (employer is responsible for employee's words only if also responsible for employee's wrongful conduct)

Front 51

List hearsay exceptions and whether declarant must be unavailable.

Back 51

Declarant must be unavailable:|1. Former testimony;|2. Declarations against interest;|3. Dying declarations.||Declarant need not be unavailable:|3. Excited utterance;|4. Present sense impression;|5. Statement of then-existing mental or physical condition;|6. Statement made for medical diagnosis/treatment;|7. Business records;|8. Public records;|9. Judgments of previous convictions

Front 52

When is testimony admissible under the former testimony exception to the hearsay rules?

Back 52

1. Declarant unavailable and opposing party (or for civil case, one who was in privity with opposing party) had both opportunity and similar motive to cross-examine the declarant in a prior proceeding

CA: Same, except earlier party need not have been in privity. Or in a civil case, former testimony offered against the speaker of the testimony or her successor in interest. Or in a civil case, offered in a deposition as part of the same case by a declarant who lives more than 150 miles away.

Front 53

When is declarant considered unavailable?

Back 53

1. Declarant has a privilege;|2. Declarant is dead or sick;|3. Proponent cannot produce declarant through reasonable means;|FRE: 4. Declarant refuses to testify despite court order;|FRE: 5. Declarant's memory fails with respect to statement.

CA: 4. Declarant refuses to testify despite court order out of fear;|5. Declarant's memory suffers total memory loss

Front 54

When is testimony admissible under the declaration against interest exception to the hearsay rules?

Back 54

1. Declarant is unavailable (need not die); and|2. At the time it was made, the statement was against the declarant's financial interest or would have subjected the declarant to criminal liability. FRE: In a criminal case, evidence that exculpates defendant must be supported by corroborating circumstances showing that the declarant's statement is trustworthy

CA: Also within the exception is a statement against social interest because it risks making declarant an object of hatred, ridicule, or social disgrace in the community. Corroboration of exculpatory offerings is not necessary.

Front 55

When is testimony admissible under the dying declaration exception to the hearsay rules?

Back 55

FRE: 1. Declarant is unavailable;|2. Declarant believes he is about to die;|3. Statement describes cause/circumstances leading to his death; and|4. It is a homicide prosecution or civil case

CA: Exception applies in all civil and criminal cases and declarant must be dead

Front 56

When is testimony admissible under the excited utterance exception to the hearsay rules?

Back 56

1. Declarant need not be unavailable;|2. Statement relates to a startling event or condition; and|3. Made while declarant was under the stress of excitement caused by event or condition

Same in CA, but called Spontaneous Statement

Front 57

When is testimony admissible under the present sense impression exception to the hearsay rules?

Back 57

FRE: 1. Declarant need not be unavailable;|2. Statement explains or describes event or condition;|3. Statement made while declarant was perceiving event or condition or immediately thereafter

CA: 1. Statement explaining conduct of declarant made while declarant was engaged in that conduct; or|2. Statement of an unavailable declarant made at or near time of injury or threat that describes or explains injury or threat, in writing or recorded or made to police or medical profession, under trustworthy circumstances (narrower than FRE; with OJ Exception, watch for Confrontation issue)

Front 58

When is testimony admissible under the statement of past or present mental or physical condition (including statement of intention) exception to the hearsay rules?

Back 58

FRE: 1. Declarant need not be unavailable;|2. Statement describes past or present (if past, must be to medical provider) mental or physical condition, or cause, of declarant or another person; and|3. Statement made for and pertinent to medical diagnosis or treatment.

A statement describing a memory or belief is not admissible to prove the fact remembered or believed.

CA: For present, same as FRE. For past, must be either a minor describing an act of child abuse or neglect to get medical purposes; or|2. An unavailable declarant if the condition is an issue in the case; no requirement that statement be made for medical purposes

Front 59

When is testimony admissible under the business records exception to the hearsay rules?

Back 59

FRE: 1. Declarant need not be unavailable;|2. Record of events, opinions, or diagnoses;|3. Kept in course of regularly conducted business activity;|4. Made at or near time of matters described;|5. By, or under direction of, person with personal knowledge of the facts with duty to transmit; and|6. It was regular practice of the business to make such a record (court may exclude if untrustworthy).

Front 60

When is testimony admissible under the public records exception to the hearsay rules?

Back 60

Declarant need not be unavailable|1. Record describes activities or policies of the office;|2. Record describes matters observed pursuant to duty imposed by law;|3. Record contains factual findings from investigation made pursuant to authority granted by law, unless untrustworthy.

Can't use police observations or government investigations in criminal cases.

CA: 1. Record made by public employee;|2. Making of record was within scope of duties;|3. Record was made at or near time of matters described; and|4. Circumstances indicate trustworthiness.

FRE exception for police and government investigations in criminal cases doesn't apply.

Front 61

When is testimony admissible under the judgment of conviction exception to the hearsay rules?

Back 61

Declarant need not be 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 person other than the accused are inadmissible

CA: The specific exception for convictions applies only in civil cases. Prop. 8 does not change this hearsay law.?? But Prop. 8 permits the prosecutor or defendant in a criminal case to impeach a witness using a criminal conviction (felony or misdemeanor) if it involves moral turpitude. A certified copy of a judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.

Front 62

When is testimony admissible under the catch-all exception to the hearsay rules?

Back 62

Evidence that is necessary, trustworthy and more probative of a particular material fact than any other evidence is admissible at the court's discretion. Notice must be given.

CA: No such exception, but new exceptions can be made by decisional law.

Front 63

When does the confrontation clause exclude out-of-court statements?

Back 63

1. Declarant does not testify at current trial, |2. Declarant is now unavailable, |3. Statement is testimonial (to produce evidence for prosecution, not for emergency response); and|4. Defendant had no chance to cross-examine at time statement was made.

Dying Declarations may be excepted from the Confrontation Clause.

Front 64

What an ancient documents?

Back 64

1. Twenty years old or more;|2. Does not, on its face, present irregularities; and|3. Is found where such a document would be expected to be found.

CA: Document must be 30 years old or more

Front 65

What writings are self-authenticating?

Back 65

1. Certified copies of public documents;|2. Acknowledged (notarized) documents;|3. Official publications;|4. Periodicals;|5. Business records; and|6. Trade inscriptions

CA: Does not include Business Records or Trade Inscriptions

Front 66

How can non-unique items be authenticated?

Back 66

1. Chain of custody;|2. Indelible marking.

Front 67

Other than the original, what tangible evidence is admissible to prove contents of a writing?

Back 67

FRE: Duplicates are usually admissible (a copy of original produced by same impression that produced original; a handwritten copy is not a duplicate).

CA: Admits duplicates and other written evidence of contents of original (e.g., handwritten notes)

Front 68

When is testimony admissible to prove contents of a writing despite the Best Evidence Rule?

Back 68

Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony.

Rule does not apply at all where writing is collateral, voluminous, or a certified public record.

Front 69

Choice of law

Back 69

FRE: In a civil suit brought in federal court under diversity jurisdiction, state privilege law applies.

CA: Most privilege law is exempt from Prop. 8, so even in a criminal case the usual rules of privilege apply.

Front 70

When is testimony privileged?

Back 70

FRE: 1. Attorney-Client;|2. Psychotherapist-Patient;|3. Spousal Privileges

CA: Also recognizes|4. Doctor-Patient;|5. Confidential communications between a counselor and a victim of sexual assault or domestic violence;|6. Penitent-Clergy; and|7. Immunity from contempt for a journalist who refuses to disclose sources.

Front 71

When does the attorney-client privilege apply?

Back 71

1. Communications between attorney and client or their representatives;|2. Intended to be confidential;|3. Made to facilitate legal services.

It lasts past death.

CA: It ends after estate is settled.

Front 72

When does the attorney-client privilege apply in a corporate setting?

Back 72

FRE: Privilege applies to communications from employees/agents if they were authorized corporation to make the communication to the lawyer on behalf of corporation.

CA: Privilege applies to communications from employee/agent if he is the natural person to speak to lawyer on behalf of corporation in the matter, or employee/agent did something for which corporation may be held liable and corporation instructed him to tell its lawyer what happened (no significant difference in application)

Front 73

What are the exceptions to attorney-client privilege?

Back 73

1. Professional services sought to further crime or fraud;|2. Two or more persons consult attorney on a matter of common interest and the communication is offered by one of the these parties against the another;|3. Communication relates to alleged breach of duty between lawyer and client.

CA: Adds that the privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm

Front 74

What are the requirements for the psychotherapist-patient and doctor-patient privilege?

What are the exceptions to them?

Back 74

FRE: No physician under federal law. If case law provides one, it must be for medical treatment.

Exceptions
1. Patient puts his mental or physical condition in issue;|2. professional services were sought to aid in crime or fraud or to escape capture;|3. Cases alleging breach of duty between psychotherapist or doctor and patient.

CA:

Only applies to licensed physician or his staff for purpose of diagnosis or treatment.

Same exceptions, plus:
4. Psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger;|5. Doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gun shot wounds and some communicable diseases)

Front 75

What is the spousal testimony privilege?

Back 75

Permits witness to refuse to testify against spouse as to anything. FRE: Applies only in criminal cases.

CA: Applies in civil and criminal cases and spouse of party is privileged not even to be called to witness stand

Front 76

What is the effect of judicially noticed facts in a criminal case?

Back 76

FRE: Court instructs jury that it may accept judicially noticed fact, but is not required to do so.

CA: Court instructs jury that it must accept judicially noticed fact. This could be a Sixth Amendment problem.

Front 77

When can witness testimony be bolstered before it is impeached with a charge of recent fabrication?

Back 77

When showing that a timely complaint (e.g., rape) was made or that a prior statement of identification was made.

Front 78

Can extrinsic evidence be used to show bias?

Back 78

Yes, if a foundation is laid by asking the witness about the facts that show his interest. Such facts can include arrests and other normally inadmissible facts.

Front 79

What is the hearsay exception for statements made by one whose unavailability has been procured by the objecting party?

Back 79

Admissible if objecting party eliminated the declarant specificaly to prevent availability.

CA: More restrictive. Applies only in serious felony cases where declarant is killed or kidnapped and statement was recorded. by law enforcement. The evidence must be clear and convincing.