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77 Cards in this Set
- Front
- Back
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What are the principles of prop 8?
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- Prop 8: ONLY applies to criminal cases.
- ALL relevant evidence is admissible. - 7 exemptions on exclusionary rules: 1. exclusionary rules based on the U.S. constitution. States must exclude evidence that violates fed stds of due rcocess ex. evidence gined in violation of Miranda or would violate Confrontation Clause. - Exclusionary rules that the California legislature adops or has adopted after 1982 (the year prop 8 enacted). by at least a 2/3 vote are prop 8 exempt. 3. Privilege rules that existed in 1982 are exempt from Prop 8. This exemption aves atty. client privelege and professonal privileges, the spouse witness and marital communications privilege, and the asorted other privileges that were part of the CEC in 1982. - Ca. bars holding media member in contemp for refusign to reveal a confidential news source or unpublished information such as reportes notes etc. - Rule aginst hearsay evidence is exempt from prop 8.. exceptions to the hearsay rule admit rather than exclude evidence so they're ok too. 9 CEC 352 (counterpart to Fed. 403_ gives judges discretion to exclude evidence if its probative value outweighs the danger of undue prejudice. - Rape shield statues are exempt from prop 8 |
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What is the essay exam approach for a criminal case in California State court?
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You must consider prop 8 which affects evidence offered by either the prosecution or the defense. There is a 3 step process:
1. ask whether th epros or def offered evidecne that would be excluded by one of the ordinary rules of evidence...note and proceed to step 2. 2. ask whether the evidence falls wiht one of the seven exempte dcategoris listed above...if so explain that prop 8 is inablicable. Third if the evidence doesn't fall within one of the seven exempted categorie s then explain that the evidence is admissible because of prop 8 be sure to discuss whether the judge should neverhteless exclude the evidenc eunder CEC 352 on the ground that its dangers substantially outweich its probative value. |
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What are the sources of California Evidence Law?
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CEC applies in all civil an cirm cases...not admin and legislative proceedings (except for privilege rules)_ Fed court in California normally apply the FEd Rules of Evidence. But in Federal civil cases where state lw governs an element of a claim or defense (for example, the substantive issues in diversity of citizenship cases), federal juges in CA. must apply the CEC when decideing 3 types of questions...1 questions of privilege 2 questions of the competency of the witness 3 questions of the effect of a presumption.
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What are the threshold admissiblity issues?
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CEC 210 requires evidence to be matiral to a DISPUTED fact the drafters of the Fed rules intentionally left out the word DISPUTED (in practice if the only purpose of a piece of evidence is to prove a fac that the opponent does not dispute the evidence will be inadmissible under 403
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EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY RESONS (POLICY BASED RELEVANCE)
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GOOD LUCK.
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What is the California rule on liabilty ins.?
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Fed 411 says D cannot use his lack of liabilty ins. as evidence he was especially careful on the occasion in quesiton. California's counterpart, CEC 1155, does not cover that situation; it prohibits only the use of liabilty ins. as evidecne the D acted negligently or wrongfully.
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What is the California rule on subsequent remedial measures?
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CEC 1151 is similar to FEd 407 but the CA rule doesn't apply in strict prod. liabilty casesw. Thus in a defective design case, a CA plaintiff can show that after her acciddent the d changed to a safer design. In a fed diversity case the court wuld apply the fed rule and exclude evidence of the subsequent safer design.
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What is the California rule on withdrawn guilty pleas and offers to plead guilty?
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Ca 1153 has been interpreted to be consistent with FEd 410. But in a CRIMINAL proceeding such pleas are admissible under prop8.
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What is the CA rule on mediation proceedings (no MS rule)?
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CEC 1115-28 protects statements made in the context of mediation proceedings when tehy are later sought in discovery or offered in evidecne in any subsequent noncriminal proceedings. The fed rules have no counterpart. Right is wailveable by mutual agreement of the parties.
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CHARACTER EVIDENCE-A SPECIAL RELEVANCE PROBLEM
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GOOD LUCK!
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What is the CA rule on use of character evidence in a criminal case?
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Even after prop 8, a California prosecutor cannot initiate the use of character evidence to prove the defendant's conduct on the occasion in question..
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How does a D prove character in a CA criminal case?
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FED 404(a) permits a criminal defendant to prove a PERTINANT TRAIT of his character (nonviolence) CEC1102 is slightly broader becasue it lets the d prove either a trait of his character or his chracter generally.
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What is the CA rule on using a victim's character in a criminal case?
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CEC 1103 allows a D to use reputation, opinion AND specific act evidenceto prove a crimie victim's character as evidence of how the victim acted on the occasion in question. The pros may rebut by using all three types of evidence about the V's character. If its a v/c or homicide pros may rebut by showing D is violent if D shows V is violent.
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What is the California Ruel on Specific acts of misconduct?
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FED 404(b) allows litigants in criminal and civil cases to offer prior spec. acts of misconduct not to prove a persons conduct but rather to prove any thign esle that is relevant ot the cse such as intent motive common plan or the like. The california counter pwart is CEC 1101(b). CA list includes D in a sex case can show v's prior sex history as evidence he reasonably believed she consented.
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What is the CA rule on Spec. acts of misconduct/prior acts of SEx assault or molestation..
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Unlike FRE, the CEC doesn't allow propensity evideence regarding the D in cses that charge sex assault. elder abule d.v. child abuse
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JUDICIAL NOTICE
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GOOD LUCK!
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What is the CA rule on judicialt notice?
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CA doesn't differ in civil and criminal... FRE says that a jury may but is not requried to accept a fact that is judicially noticed.
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DOCUMENTARY EVIDENCE
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GOOD LUCK!
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What is the Ca rule on ancient docs?
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In addition to allowing dipositive intsturments (wills deeds) over 30 years old to be authenticated as provided in the main text (CEC643) CEC1419 allows a doc over 30 years old to be authenticated by comparrision with a different document that appears to be authentic and has been treated as authentic by people who care about its authenticity.
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BEST EVIDENCE RULE
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GOOD LUCK
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What is the CA rule on Defnitions of writings, original and duplicate?
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CA has secondary evidence rule that serves the same function as the BER...(guards against unreliable or fraudulent secondary writing)....However, the ca secondary evidencee rule is more liberal that BER allos the indrodcution of exact dulplicates (absent a question as to the authenticity of the original or when introduction would otherwise be unfair)...but also other written evidence (e.g.) a penciled sketch of the offending graffiti in a defamation case). The BER would only allow introduction of such evidence if the original was lost, destroyed or was otherwise unobtainable by the proponent.
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Writings original duplicate cont.
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NOTE: in CA criminal case if the either the pros or the def needs to prove ethecontent of a writting and fi she possesses tor controls the original, she should allow the other side ot inspect i at or before the trial. If she does not do tha, she msut use either the original or a duplicate at trial; other written evidence of the conten of the original will be inadmissible. CEC 1522. Moreover, Prop 8does not apply because the legislature adopted the rule by more than 2/3 vote.
AND NOTE: In CA civil and crim cases oral testimony is inadmissible to prove teh content of a writing except in the following situations (CEC 1523): the orignial is lost or destroyed without fraudulent intent by the proponent and the propenet can't get a copy...the writing consists of a multitued of ites that cannot efficiently be examined in court, and the objective is to prove the bottom-line conclusion, not the little details; - The propoenent does not have and cannot get the original or a copy by subpoena or other reasonable mans; or - the propoenent does not have and cannot get the orignal or a copy and the writing is not important enough in the case to make it worthwhile to track down the original or a copy. |
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TESTIMONIAL EVIDENCE
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GOOD LUCK!
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What is the rule on a Judge as a witness?
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In CA the presiding judge generally is incompetent ot testsify at trial and merely calling the judge to wtih witness stand is groudns for a mistrial (CEC 703)...Further, the presiding officer at a judicial or quasi-judical proceeding, or an arbitrator or mediator, is incompetent to testify in a later civil proceeding about anything that happened in the earlier proceeding, except for testimony about a statement or conduct that could constiute contempt, crime or judical misconduct (CEC 703.5)
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What is the CA rule on dead man acts?
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CA doesn't have dead man acts dummy.
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What is the Ca rule on Past recollection recorded?
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CA treats it as an exception to the h'say rule.
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What is the rule on usiong a Past recollection recorded during cross.
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CEC 771 is more rigorous than FRE 612. In CA whether the refreshing is doen before trial or at trial, fi the opponent asks for teh writing to be produced, the proponent must produce it, and if it isn't produced the refreshed T is stricken. However if the prponet doesn 't have the wriging and can't get it by subponea or other available means the duty is excused.
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What is the CA rule on opinion T by lay witnesses?
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CEC 800 differs from FRE 701 in one respect... The CA rule doesn't include the 3rd requriement found in FRE 701 that a lay W's T not be based on scientific technical or other specialized knowledge (expert t).
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What is the CA rule on expert Testimony?
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Stricter stds. tahn for fed court for determining whter to allow expert T. Fed courts will alow expert opinion based on new, novel sci. theory or technique so long as it is validated by sound methodology including adequate research and observation. In CA, the proponet of sicentific expert opinion T msut prove that the underlying scientific theory and the instruments that it uses have been generally accepted as validand reliable in the relevant in the scientific field. The test doesn't apply to to nonscientific expert testimony, even to medical testimony.
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What is the rule on facts made known to an expert Outside the Court?
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In federal court, an expert in California can be cross-examined using a text or treatise if it has been established by any method ad reliable authority (CEC 721(b)) but Ca and fed law differ on the sue of text snd treatieses as substantive evidence that what they assert is true. FRE 802(18) containtes a liberal hearsay excepton for such matrial. CEC 1341 is much narrower. It covers only "historical works, books of science or art and published maps or charts." Furthermore, CEC 1341 allows the use of such wriging to prove only facts of general noteriety nad interest which makes the haersay exception almost useless.
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What is the rule on bolstering a witness's credibilty?
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Can't boloster the witnesses in crediblity in civil cases if the witness has not been attacked. In CRIMINAL cases prop 8 allows both the prosecutor and the defendant to bolster a witness's crediblity before it has been attacked.
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What is the rule on the evidentiary effect on prior inconstent statements?
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Under the FRE, a witness's pror inconstent statement can be used over hearsay objection to prove that wbat it asserts is true, but only if it was made under oath at a prior trial, hearing, deposition or similar proceediing. FED ev. 801(dA)(1)A)) In CA any ANY KIND of prior inconsistent statement can be used over hearsay objections to prove that what it asserts is true, whether or not the prior statement was made under oath at aformal proceeding. EX if the witness testifies at trial that the traffic light was red, the opponent can then confront him with his prior satement that the light was green, even if the prior statement was made to a bum in a bar. The prior statement can be used ont only to impeach the witness, but also as substantive evidence that the light was gree.
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What is the rule on impeachment for conviction of a crime?
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CA law on crminal convictions to impeach is very different from the FRE....
1. Felony convictions - CEC 788 allows both riminal and civil litigants to impeach a witness with any felony convition whether it involves dishonesty or not... 3 qualifications - The conviciton has not been expunched, nor the witness pardoned, or the like - the felnoy must involve moral turpitude, meaning a general readiness to do evil...court look at the elements of teh crime (most felonies do involve moral tgurpitute) (not felony battery , can be charged for touching that doesn't cause serious injury. - Trial court has discretion under CEC 352 to prohibit the use of the conviction if its (courts also consider remoteness, and wheteh the jury may misuse the conviction if it is similar to the crime charged) - Misdemeanor convictions cannot mpeach witness, except in criminal cases pros can impeach with misdemeanor involving moral turpitude |
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What is the rule on specific instances of misconduct?
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The FRE and common law allow impeachment of a witness by cross on prior bad acts that show w is not a truthful person. but does't allow extrinsic evidence.
CEC 787 allows extrinsic evidence (prop 8) but not civil casesand does not allwo the initial cross on bad acts. |
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What is the CA rule on opinion or reputation evidence for truth?
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Ca follows the fed approach and allws both reputation and opinion ediecne to be used in attacking or supporting a W's character as a truthful person. (
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What is the fule on motions to strike
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can be made by any party not just examining counsel
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What are the general considerations for testimonial privileges?
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When a litigant claims privlege the judge msut decide whtehr the privilevge applies, C
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Does a CA atty have to claim the privilege for a client if he's not there?
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Yes.
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What is the ca rule on eavesdroppers?
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CEC 954 allows the holder of the privilege to stop eavesdroppers from revealing the info.
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What is the CA rule on att'y/client privilege?
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In CA a communication from a corporate officer or employee to the corporation's lawyer will be protected by the corporation's privilege in either of two situations
1. the officer or employee is the natural person to speak to the lawyer on behalf of the corporation in the matter at hand e.eg. the corporation's in-house counsel or CEO; or the offier or emplyee did something for which the corparation may be held liable and the corporation instructed the officer or director to tell its lawyer what happened. |
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What is the duration of the attorney client privilege in CA?
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CA doesn't follow the FED rule, in CA the atty' client privilege evaporates when teh dead client's estate has been fully distributed and his personal representative ahs been discharged.) that the lawyer reasonable believes is likely to kill or casue substantial bodily harm to someone...must speak out in the first situation, can in the second.
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What is the rule on legal advice (atty client privilege) when client discloses possiblity of future wrongdoing?
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If the atty reasonably believes that she msut disclose a clien'ts confidential communication in ordre to prevent a crime (committed by anyone.
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What is the CA rule on physician/patient privilege?
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CEC990-1007
- Differes from the FED in 4 ways - Ca only applies privliege ot licensed physicien, not to a dentist, nurse or other medical worker. Patient's communication with physician's nurse is covered if nurse is agent. - The common law privlege applies only if the patient consults for treatment...CA covers treatment and DIAGNOSIS - In CA the physician-patient privliege doens't apply in cmmitment proceedings, or competency proceeding, or proceedings to revoke or suspend a license (e.g. stae bar's_ - IN ca the phys/patient priv. doesn't apply to crim cases or to info that the physician is required to report (e.g. gunshot wounds/communicable diseases) |
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What is the CA rule on Psychotherapist/Social Worker Privilege
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CA's psychotherapist-patient privilege (CEC1010-1027) is similar to FED but 4 diferences
1. CA coversw psychiartrist, psychologists, clincal social workers, school psychologists, marriage counselors, mental health nurses, mental health assistants, interns and trainess, ASlo CA has privleges for confidential commuincations with sex assault counselors, domestic violence counselors, and conselors who aid victims of human tafficking. - Califonria psychotherapit-patient privlege doens't apply in criminal cases, but it doesn not apply to court-appointed therapits (except when a criminal defense lawyer asks the court to appoint a therapist ot adivese on an ainsanity pela or other mental-heath defense. - The Ca privilge doesn't apply if the therapist has reasonable cause to believe that the patient isa danger to himself or others, and if disclosure is necessary tothe end the danger. - The CA privilege doesn't apply if the patient is a child under 16 and the therapist has reasonable cause to thingk that the child has been the victim of a crime and that discosure is in the child's best interest. |
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What is the Ca rule on spousal immunity?
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Spousal immunity differs from FEd in 2 ways
- The fed verson applies only in criminal cases, but in CA if you are validly and presently married to a person, you have a privilege not to testify against your spouse in any kind of a proceeding. 2 in CA if your pesent valid spouse is a party ot any kind of proceeding, you have a privlege not to even be called to the witness stand by an adverse party. (CEC 971). |
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What is the CA rule on clergy pentitent privliege?
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Must be to celric who
routienly recieves communications and who's religion requires them to be kepts ecret (CEC 1032). The pentitent and teh cleric are each holders of the privlege so each can claim and if pentitant waives clergy can invoke. |
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Does CA have an Accountant-Client Privliege?
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No.
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What is the CA rule on Journalist privilege.
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No true J prive, but people who work in media cannot be punished for contempt if they refuse to reveal a confidential source or any unpublished background material, such as reporter's notes, tapes, etc. (CEC 1070). However, J can be snactioned .in civil discovery. IN a criminal case if the D can show that the J's info will materially assist the defense, the Judge then balances the need against the importance of confidentiality.
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What is the difference between CA and FED witness sequestration?
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FRE 615- must sequester
CEC 777- discretion to grant or deny motion |
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HEARSAY RULE
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GOOD LUCK!
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Prop 8
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H'say rule is exempt.
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CA rule on prior statements by witnesses?
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FRE 801 3 kinds of prior statements are nonhearsay...in CA the statements are H'say but admitted under the following exceptions:
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Prior inconsistent statements?
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CEC 1235 is Ca's H'say exxception: allows PIS to be used to show what it aserts its true even if not under oath,. IN crim case: use doesn't violate Confrontation Clause IF D has meaningful chance at trial to CROSS about PIS.
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CA rule on prior consistent statement?
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CEC 1236: H'say exception for pror consistent statements...PCS must have been made before an alleged INCONSISTENT STATEMENT, or allleged recent fabrication, or an allegedly arisen bias. If it is admissible to bolster the W's credibility then it is also admissible for truth.
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CA rule on Prior Identification?
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CEC 1238 is the H'say exception for prior identification of a person. CA imposes 2 req's not in FRE 801(d)(1)(C).
1. Witness must have idntified the person while her memory of the event was fresh. 2. W msut confirm in court that she made the prior identification and that it truly reflected her opinion at the time. |
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CA rule on Admissions by a Party Opponent?
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FRE 801(d)(2) lables APO as "non h'say"
CEC 1220-8.1: Exceptions to the H'say rule |
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CA rule on Vicarious admissions of a principal/agent?
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FRE 801(d)(2)(D): admits agent's admission against his principal when the statement is about something within the scope of the agen't authority and made while the agent was still working for the principal. However, in respondeat superior CIVIL CASES, many Ca judges stretch CEC 1224 to cover this. For exam purposes low ranking agen'ts statement will be admisible against principal if the agent committed the tort in question and shortly after made a detailed statement while still in employment.
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What is the CA rule on defining "Unavailablity" to testify?
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CA does not recognize lack of memory or refusual to testify...FED courts do.
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CA rule on Former T?
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CA does not requrie privity against the testimony was offered in the prior proceeding.
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CA rule on statements against interest?
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The CA and FED excemptions are the same except 2 differences:
1. CA recognizes statements against social interest ("hatred, ridicule or disgrace in the community"). 2. FRE says that when a criminal defendant tries to exculpate himself by using unavailable declarant's self incriminating statement, the criminal defeandt must offer "corroborating circumstances" showing that the declarant's statemetn is trustworthy. CA doesn't require this. |
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What is the CA rule on dying declarations?
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2 differences from the FRE:
1. admissible in any case civil or criminal, in FRE only in civl cases and homicide cases. 2 CA requires declarant to be really dead. In FRE any permissible grounds for unavailability sufficient, and statemtn only need be about whatever the D thought was about to kill him. |
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CA rule on statemetns of Personal or family history?
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CA and FED exceptions on personal or family history are the same except: IN CA statement of personal or family history is not admissible if it wsa made under circumstances that cast doubt on its trustwrthiness (1310(b).
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What is the CA rule on Statements offered gainst a party procuring declarant's availabilty?
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CEC 1350 has the same objective as FRE 804(b)(6 Ca rule is more restrictive:
1. FED exception applies in any case, CA only applies in SERIOUS FELONY cases 2. FED applies when dec. is unavialable for any fed recognized reasons... CA exception applies only if hte declarant was killed or kidnapped. 3. Fed exception applies to any out-of-court statemetn, but in CA the statemetn must have been recored (on tape or in writing) by a lwas enforcement offical before the declarant was killed or kidnapped. 4. IN CA ther msut be clear and convincing evidence that the declarant's kiling or kidnapping wsa procured by the peson against whom the statement is offered, but he ordinary preponderance of evidence standard applies in FED court. |
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H'SAY EXCEPTIONS - DECLARANT'S UNAVAILABILTY IMMATERIAL
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GOOD LUCK!
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CA rule on present state of mind?
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Unlike FRE CA authorized TJ to exclude statemtns of midn or body atha are made in suspicious circumstances (CEC 1252) (e.g. two hours after being lightly brushed by a passing limousine, pedestrian grimaces and howls "oh I am in horrible pain."
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What is the CA rule on present sense impression?
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CA has no exceptoin...
CEC 1241 allos for contempranous statement but that applies only to a statemet that the dec made to explain qualify or make understandable something that the declarant himself is doing at the time he makes the statement (e.g. declarant tells the passengers in her van "I am sorry for driving so fast, but I'm tring to get us home on time" |
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What is the CA rule on Declarations of physical condition/present bodily condition?
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In both CA and fed court, a dec. statment of his present bodily condition is admissible on the same terms of a statement of his present mind.
CA has additional exception for sstatemtents of past bodily condition or state of mind. Such issues are admitted only if dec. is unavailable (because they are suspicious). The can be used only as evidence to state of mind or body that is ITSELF IN ISSUE. |
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CA rule on past bodily condition for diagnosi or treatement?
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CA has no counterpart to FRE 804(4) concernging statemtns made to medical personnel to obtain diagnosis or treeatment.
CA does admit those statemnt if made by a child abuse counselor. |
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CA rule on hospital records?
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FRE 803(6) includes "opinions and diagnoses" in its definition of business records, but CEC 1271 speaks only of "acts conditions, and events." CA judges readily admit hospital records that incldue fairly straight-forward, undebataeable opinions and diagnoses (e.g., compound fracture of the left tibia) but they are unlikely to admit hospital record that express difficult or debatable ones (untreatable sexual psychotherapy).
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What is the CA rule on Official Records and other Official Writings?
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CEC 1280 is different from FRE in 2 ways:
1. CA allows the fact finding sin a government investigation report to be used for the governmetn as well asagainst it, provided that the report is trustworthy. 2. CA. doesn't automatically reject "police ovservations in criminal cases." Rather Ca. Judges use the trustworthiness req to reject police reports that seem unreliable. |
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What is the CA rule on prior felony convictoins?
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FRE 803(22) allows felony conviction to be used in CIVIL and CRIMINAL cases to prove any fact essential to the judgment, but CEC 1300 permits usch use only in A CIVIL case. FRE also bars use of a felony conviction that was based on a plea of nolo contentre, but CEC 1399 includes conviciotns based on a nolo plea.
CA crminal cases ... Prop8 allows the prosecutor or defense to impeach a W using a CRIMINAL convictoin (either felony or misdemeanor) if it involves moral turpitude. |
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What is the CA rle on jugement in former Civil case?
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The FRE have no counterparts for the following 2 CA h'say exceptons CEC 1301 allows litigant X to use final jugement against himself when he sues Y for indemification or to enfoce a warranty, or to recover for breach of warranty. 1302 final jugment against third party Z holding that Z has liablity or duty is admissibly when offered in a suit by X or Y.
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What is the CA rule on ancient doc's affecting property interests?
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FRE 803(16) requries only 20 years for a documetn to become "ancient," but CEC 1331 requires 30 years, plus foundational evidence that during those 30 years the document wsa treated as accurate by people who have resason to care. CA and fed law are alike concerning docs that affect an interest in property.
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CA rule on learned treatieses?
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narrow to the point of uselessness...only applies to facts of general noteriety and interst that are found in published maps or charts or books of history, science or art. CA judges read art to cover little beyond exact sciences...probably the same std. as JUDICIAL NOTICE
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Does CA have a residual catch-all exception?
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No...but ca juges can create new H'say exceptions by decisional law...CEC1200(b) provides that hearsay is inadmissible except as provided by "law and CEC 160 defines law to include decisional law.
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Is a CA judge bound by the rules of evidence when making pre-trial factual determinations?
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yes...unlike the fe
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Can a California Judge comment on the evidence and credibilty of witnesses?
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yes but the judge must be fair and not usurp the jury's function.
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