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69 Cards in this Set
- Front
- Back
CEC Introduction |
California Evidence Code (CEC)
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Exceptions Prop 8 |
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CEC Approach |
Approach:
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Relevance |
Definition is same as federal.
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Relevance Exclusions for Public Policy Reasons |
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Relevance Exclusions for Public Policy Reasons Subsequent Remedial Measures or Repairs |
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Relevance Exclusions for Public Policy Reasons Settlements, Offers to Settle & Related Statements |
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Relevance Exclusions for Public Policy Reasons Payments or Offers to Pay Medical Expenses |
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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:
Example: “If you sign a release, I will pay your medical bills. I shouldn’t have dropped that banana peel on the floor.”
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Relevance Exclusions for Public Policy Reasons Expressions of Sympathy |
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Character Evidence Civil Cases |
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Character Evidence Criminal Cases |
Two major issues: is character evidence admissible to prove conduct of defendant |
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Character Evidence Criminal Cases D's Conduct |
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Character Evidence Criminal Cases D's Conduct Exceptions |
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Character Evidence Criminal Cases Victim's Conduct |
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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. |
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Testimonial Evidence Competency |
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Testimonial Evidence Competency Grounds for Disqualifying Witnesses |
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Testimonial Evidence Expert Opinion FRE & CEC Similarities |
FRE & CEC: five requirements for the admissibility. Opinion must be:
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Testimonial Evidence Expert Opinion FRE & CEC Differences |
CEC (Kelley/Frye general acceptance standard):
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Witness Credibility Impeachment Impeachment by PIS of Witness Now Testifying at Trial |
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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.
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Witness Credibility Impeachment Impeachment w/ Prior Felony Conviction |
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Witness Credibility Impeachment Impeachment w/ Prior Misdemeanor Conviction |
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Witness Credibility Impeachment Impeachment w/ Prior Misdemeanor Conviction CEC Approach |
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Witness Credibility Impeachment Final Points |
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Witness Credibility Impeachment Non-conviction Misconduct Bearing on Truthfulness |
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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.”
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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.
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Hearsay |
Hearsay law is exempt from the Truth in Evidence amendment (Prop 8). Therefore in criminal cases, usual rules of evidence apply. |
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Hearsay Exemptions/Exceptions |
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Hearsay Exceptions Admission of a Party Opponent - CEC (Opposing Party Statement - FRE) |
Admission of a party opponent (opposing party statement in FRE).
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Hearsay Exceptions Vicarious Party Admissions |
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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.”
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.”
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Hearsay Exceptions Witness PIS |
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Hearsay Exceptions Prior Consistent Statement of Witness Now Testifying at Trial |
Admissible under both FRE & CEC if made before bribe or inconsistent statement.
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Hearsay Exceptions Declaration Against Interest Exception |
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Hearsay Exceptions Unavailable Declarant |
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Hearsay Exceptions Former Testimony |
Testimony given in earlier proceeding or deposition by witness now unavailable is admissible in current proceeding if:
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Hearsay Exceptions Former Testimony Related CA Law |
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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.
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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.
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Hearsay Exceptions Dying Declaration |
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Hearsay Exceptions Present Sense Impression |
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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.”
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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)
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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. |
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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. |
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Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for |
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Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for 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. |
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Hearsay Exceptions Exception for Statement of Past or Present Mental or Physical Condition Made for 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?
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Hearsay Exceptions Business Records |
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Hearsay Exceptions Public Records (FRE) |
FRE: Hearsay record of a public office is admissible if within one of the following categories:
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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.
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Hearsay Exceptions Exception for Judgment of a Conviction |
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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.
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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. |
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Writing and Other Physical Evidence Authentication Self-Authenticating Writing |
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Writing and Other Physical Evidence Best Evidence Rule (Secondary Evidence Rule in CA) |
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Privileges |
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Privileges Attorney-Client |
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Privileges Communication from a Heart for employee to the corporations attorney
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Privileges Communication from a Heart for employee to the corporations attorney Exceptions |
FRE & CEC: privilege does not apply where:
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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.”
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Privileges Doctor/Psychotherapist-Patient |
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Privileges Doctor/Psychotherapist-Patient Exceptions |
FRE & CEC for both privileges:
CEC:
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Privileges Spousal
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Privileges Other CA Privileges
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Judicial Notice |
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