California Evidence Disinctions

Front 1

What does the California Code of Evidence (CEC) require as a threshold admissibility requirement?

Back 1

CEC requires evidence to be material to a DISPUTED FACT.

Front 2

What is the CEC rule regarding the admissibility of subsequent remedial measures taken by D as evidence of liability?

Back 2

Generally, the CEC is similar to the federal rule: subsequent remedial measures are inadmissible to prove negligence or other culpable conduct. HOWEVER, THE CALIFORNIA RULE DOES NOT APPLY IN A STRICT LIABILITY CASE. (So, in a defective design case--a CA plaintiff can offer evidence that after her accident, the D changed to a safer design.

Front 3

What is the CEC rule regarding the admissibility of payment of medical expenses as evidence of liability?

Back 3

Under the FRE, an admission of fact (eg "I was too drunk to see yr child playing in the street") is admissible even though it accompanies an offer to medical expenses. CEC makes both the offer to pay AND the admission of fact inadmissible to prove liability

Front 4

What is the CEC rule regarding statements made in the context of mediation proceedings as evidence of liability?

Back 4

California's public policy objective is to encourage people to mediate their statements. The CEC protects statements made in the context of mediation proceedings. The FRE have no counterpart to this rule.

Front 5

What is the CEC rule regarding expressions of sympathy as evidence of liability?

Back 5

The CEC prohibits expressions of sympathy relating to the pain, suffering, or death of an accident victim as evidence as evidence of liability. The FRE have no counterpart to this rule.

Front 6

Can a CA prosecutor generally initiate the use of propensity evidence in a criminal case?

Back 6

Generally-- NO: a CA prosectutor cannot initiate the use of character evidence to prove D's conduct on the occasion in question. Accused can initiate the use of character evidence though

Front 7

How does a defendant prove character?

Back 7

Under the FRE, a criminal D can prove a pertinent trait of character (ie nonviolence). CEC is slightly broader--lets D prove either a trait or his character OR his character generally.

Front 8

how does the prosecution rebut D's character evidence?

Back 8

The FRE allows the prosecution to rebut the D's character evidence on cross examination through reputation and opinion testimony, as well evidence of specific instances of conduct. CA, however, allows only reputation and opinion testimony on cross examination.

Front 9

What kind of evidence can a D use to prove the character of a victim in a criminal case?

Back 9

The CEC allows a D to use not only reputation or opinion evidence, but also SPECIFIC ACT EVIDENCE to prove the crime victim's character as evidence of how the victim acted on the occasion in question (though, as under federal law, the rape shield laws prohibit all three types of evidence about the character of a sex crime victim). Prosecutor may rebut using all three types of evidence.

Front 10

Is a victim's past behavior admissible in a rape case?

Back 10

NO! California has a rape shield law. This prohibits a criminal D from offering any type of evidence about the victim's prior sexual conduct, or the victim's manner of dress, to prove the victim's consent on the occasion in question. However, the prohibition does not apply to the victim's prior sexual conduct with the D.

Front 11

What is California's rape-shield law for civil sex cases (ie sexual harassment/civil sexual assault?

Back 11

The D cannot offer evidence of P's prior sexual conduct to prove consent or lack of injury. But, the prohibition does NOT apply to prior sexual conduct with the D. If the P initiates the inquiry into prior sexual conduct, the D can cross examine and rebut.

Front 12

What is California's rule regarding the admissibility of specific acts of conduct for prior acts of sexual assault or child molestation?

Back 12

Both the FRE and CEC permit propensity evidence in criminal cases that charge sexual assault or child abuse (ie prosecutor's case in chief can include evidence that D committed a prior rape to prove his propsenity to rape, circumanstantial evidence that he committed the rape in question). The prosecutor must disclose evidence to defense in advance and judge has discretion to exclude it

Front 13

What is difference btwn the FRE and CEC regarding admissibility of prior acts of sexual assault/child molestation?

Back 13

1) The FRE allows propensity evidence in civil AND criminal cases. But, CEC only allows in criminal cases. 2) CEC permits propensity evidence in criminal cases that charge domestic violence or elder abuse--but the FRE do not.

Front 14

What is the difference in admissibility btwn the FRE and CEC regarding the admissibility of character evidence in civil cases

Back 14

Generally, character evidence is inadmissible in a civil case to prove conduct under the FRE and CEC. There are NO EXCEPTIONS IN CA But, the FRE allows evidence of D's prior acts of sexual assault or child molestation to prove conduct in such cases.

Front 15

What is the rule in California regarding the admissibility of evidence of victim's conduct?

Back 15

Both FRE and CEC: prosecution cannot be the first party to offer evidence to prove victim's conduct. FRE: has an exception in homicide cases (allows prosecution to offer evidence that victim had a peaceful character if D offers evidence that the victim was the first attacker)--this can be done by reputation and opinion evidence; specific instances of conduct are only permissible on cross examination and not direct examination. In CA, evidence of victim's character is admissible if it is relevant. This can be done by reputation and opinion and specific instances of conduct on direct and cross examination.

Front 16

What is the CEC rule regarding judicial notice of fact?

Back 16

The FRE adds a distinction btwn civil and criminal cases to foreclose the argument that using judicial notice to take a fact away from the jury wld violate the D's 6th amendment right to a jury trial. CEC fails to make this distinction though! So, it may be open to a 6th amendment challenge

Front 17

What is the CEC rule regarding ancient document?

Back 17

Under the CEC, a document that is over 30 years old can be authenticated. (versus 20 yrs under the FRE).

Front 18

What are self-authenticating documents in California?

Back 18

The CA courts presume the authenticity of the following:
A writing that is acknowledged; something with court's or notary's seal. Something signed by a domestic public employee or notary public. Newspapers, periodicals, books published by a public entity and case reports published in law report volumes.

Front 19

What documents are NOT self-authenticating in CA?

Back 19

trade inscriptions and business records (but they are under the FRE)

Front 20

What is California's "version" of the BEST EVIDENCE RULE?

Back 20

It's called the secondary evidence rule. It has the same objective as the best evidence rule: to guard against unreliable or fraudulent secondary evidence of a writing.

Front 21

What is secondary evidence, as defined in California?

Back 21

The CA rule defines secondary evidence to include BOTH duplicates (exact copies--ie photocopies) and other written evidence of the content of the original writing (ie a penciled sketch). California rule is more liberal than the FRE best evidence rule. (penciled sketch wld only be admissible under FRE if it satisfies an exception to the best evidence rule)

Front 22

What are the exceptions to the secondary evidence rule regarding oral testimony in CA civil and crim cases (ie when CAN you use oral testimony to prove the content of a writing)?

Back 22

1) if original is lost and proponent cannot get a copy 2) writing consists of many items--that cannot efficiently be examined in court and objective is to prove bottom line conclusion and not little details 3) proponent does not have and cannot get original or copy by subpoena or other reasonable means 4) proponent does not have and cannot get original or a copy and writing is not important enough to track it down

Front 23

What is the CEC rule regarding witness competency?

Back 23

Under CA law, a person is competent to be a witness unless 1) she cannot understand the duty to testify truthfully or 2) she cannot make herself understood (directly or through an interpreter). Trial judge decides these first two items. A witness must also have personal knowledge--which requires the ability to 1) perceive and 2) remeber the relevant facts.

Front 24

Does CA treat past recollection recorded as an exception to the hearsay rule?

Back 24

Yes, CA counts past recollection recorded as an exception to the hearsay rule!

Front 25

What is CA's rule regarding the inspection of a writing used for past recollection recorded (and its use in cross examination)?

Back 25

In CA--regardless of whether the refreshing is done before trial or at trial--if an opponent asks for a writing to be produced, the proponent MUST produce it and if it is not produced, the witness's testimony from refreshed memory must be stricken. (Though if the proponent does not have the writing and cannot get it by subpoena or other available means, the duty to produce it is excused).

Front 26

What is the difference btwn the CEC and the FRE regarding the admissibility of opinion testimony by a lay witness?

Back 26

The CA rule does not include the third requirement found in Federal Rule 701 (that a lay witness's testimony NOT be based on 'scientific, technical, or other specialized knowledge' of the sort that underlies an expert witness' testimony. *this third requirement was added to the FRE to stop federal litigants from pretending that an expert witness is merely a lay witness, but then sneaking in testimony that only an expert witness cld provide (&evading rigorous standards for expert scientific or technical opinion evidence). CEC just relies on trial judge's judgement

Front 27

What is the standard that CA uses for admitting expert testimony? (Daubert or Kelly-Frye?)

Back 27

CA uses the Kelly-Frye standard! This is: the proponent of scientific expert opinion testimony must prove that the underlying scientific theory, and the instruments that it uses, have been GENERALLY ACCEPTED AS VALID AND RELIABLE IN THE RELEVANT SCIENTIFIC FIELD. (note that Daubert is: expert opinion must be validated by sound methodology, including adequate research and observation)

Front 28

What is CA's rule regarding bolstering a witness?

Back 28

For CIVIL cases, CA follows the general rule against bolstering before a witness's credibility has been attacked. However, in a CRIMINAL case, proposition 8 weirdly allows both the prosecutor and the defendant to bolster a witness' credibility before it has been attacked.

Front 29

What is CA's rule regarding the admissibility of prior inconsistent statements (to use for impeachment purposes)?

Back 29

The FRE limit the use of a prior inconsistent statement to impeachment UNLESS the statement was made under oath in a prior legal proceeding. But, CA allows a prior inconsistent stment to be used as substantive evidence WHETHER OR NOT the prior statement was made under oath at a formal proceeding.

Front 30

What is the CEC's stance on using criminal FELONY convictions to impeach a witness?

Back 30

The CEC allows litigants in both civil and criminal caes to impeach a witness with ANY felony conviction (whether or not it involves dishonesty or false statement), SO LONG AS: 1) teh conviction has not been expunged/pardoned 2) the felony must involve moral turpitude 3) the trial court still has the discretion to exclude its use if its value is substantially outweighed by its dangers.

Front 31

What is the CEC's stance on using criminal MISDEMEANOR convictions to impeach a witness?

Back 31

In CA civil cases, a misdemeanor conviction cannot be used to impeach a witness. IN CA crim cases, Prop 8 allows the prosecutor and the defendant to impeach a witness with a misdemeanor that involves moral turpitude

Front 32

In a CA civil case, can a litigant impeach a witness by quizzing him no cross examination about any prior bad acts (non-convictions) to help show that a witness is not a truthful person?

Back 32

NO--CA differs from the FRE in this regard. CA does not only prohibit the introduction of extrinsic evidence to prove this (which the FRE does), but it also prohibits the initial cross examination.

Front 33

In a CA criminal case, can a litigant impeach a witness by introducing prior bad acts (non-convictions) to help show that a witness is not a truthful person?

Back 33

Yes, in CRIMINAL cases--proposition 8 allows both the initial cross examination AND extrinsic evidence (again making this different than the FRE)

Front 34

When does CA's physician/patient privilege apply?

Back 34

It applies only to a LICENSED PHYSICIAN (or someone the patient reasonably thinks is licensed). It does NOT apply to a dentist/nurse/medical worker. (Also, the common law privilege applies only if the patient consults the physician to get treatment, but in CA the privilege applies if the patient is seeking TREATMENT OR DIAGNOSIS).