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67 Cards in this Set

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When do we apply California Law?
Only on essay, and only if the essay question directs you to do so. Otherwise, apply the FRE on the essay.
What is the “Truth in Evidence” amendment to the California Constitution (prop 8)?
In a criminal case, MENTION the “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 CA Truth in Evidence Amendment
(i) Exclusionary rules under U.S. Constitution - e.g., Confrontation Clause; (ii) hearsay law; (iii) privilege law; (iv) limits on character evidence about victim in rape case; (v) rule prohibiting prosecution from offering evidence of D's character before D opens the door; (vi) secondary evidence rule (CA’s version of the best evidence rule); (vii) CEC 352 balancing (court’s power to exclude if unfair prejudice substantially outweighs probative value).
Three step approach to applying California law on essay - criminal case
1. Raise all objections under CEC. 2. For each objection, mention if TIE overrules the objection (Is the evidence relevant? Does a TIE exception apply?). 3. If evidence seems admissible under Prop. 8, balance under 352.
Relevance - difference
Both: Evidence is relevant if 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 w/o the evidence. CA: Fact of consequence must be in dispute.
Subsequent remedial measures or repairs - difference
Both: Evidence of safety measures or repairs after an accident is inadmissible to prove negligence. FRE only: ALSO inadmissible to prove defective design in a products liability action based on theory of strict liability.
Settlements - difference
Both: Evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. CA only: discussions during mediation proceeding also inadmissible.
Payments or offers to pay medical expenses - differences
Both: Evidence of payments or offers to pay medical expenses is inadmissible to prove liability for injuries in question. CA: Admissions of fact made in course of making payments or offers are inadmissible. FRE: Admissions of facts are excluded only if part of settlement offer. (“I’ll pay your bill. I shouldn’t have dropped the banana peel.” v. “If you sign a release, I will pay your hospital bill. I shouldn’t have dropped the banana peel.”)
Expressions of sympathy - difference
CA only (no similar FRE): Inadmissible in civil actions - Expressions of sympathy relating to suffering or death of an accident victim. Statements of fault in connection with such an expression are not excluded. (FRE - depends on context…) “I am so sorry you are badly hurt. I should not have run the red light.” CA: second but not first sentence admissible. FRE: all admissible.
Pleas later withdrawn, offers to plea, and related statements - differences
Both: Inadmissible. Unclear if Prop 8 makes it admissible. Even if Prop 8 applies, court may still exclude for unfair prejudice under § 352.
Character evidence - civil cases - differences
Both: Inadmissible to prove conduct. CA: No exceptions. FRE: When crime is based on sexual assault or child molestation, D's prior acts of sexual assault or child molestation are admissible to prove D's conduct in this case
Character evidence - criminal cases - admissibility of evidence of D's character to prove conduct - differences
General rule: Both: Prosecution cannot be the first to offer such evidence; usually can only rebut after D opens door by offering character evidence. Exceptions: (1) Both: In cases of sexual assault or child molestation, P may offer evidence that D committed other acts of sexual assault or child molestation. (2) FRE: Where court has admitted evidence of V's character offered by D, P may offer evidence that D has SAME trait (broader than CA). (3) CA: In prosecution for crime of domestic violence, P may offer evidence that D committed other acts of domestic violence; (4) CA: Where court has admitted evidence of V's character for violence offered by D, P may offer evidence that D has VIOLENT character (narrower than #2, FRE)
Character evidence - criminal cases - forms of evidence of D's character to prove conduct - differences
FRE: Direct - only reputation and character, no specific acts. Cross - all 3 OK. CA: Direct and Cross - only reputation and opinion, no specific acts. BUT Prop 8 makes it all admissible, i.e., all 3 OK on direct and cross, subject to § 352 balancing.
Character evidence - criminal cases - admissibility of evidence of victim's character to prove conduct - differences
Both: Generally, prosecution cannot be first to offer evidence to prove conduct; FRE - homicide case - prosecution can be first to offer evidence that V had peaceful character, if D offers evidence victim attacked first. CA: Prop 8 (if evidence of V’s character is relevant, admissible, subject to 352 balancing). D can be first to offer character of victim to prove conduct, then prosecution may rebut (door is open).
Character evidence - criminal cases - forms of evidence of V's character to prove conduct - differences
FRE: Reputation and opinion evidence admissible; no specific instances on direct, OK on cross. CA: reputation, opinion and specific conduct permitted on both direct and cross.
Character evidence - criminal cases - rape shield statute (limits defense evidence of alleged V’s character when offered to support defense of consent) - differences
Both: Same - Prop 8 doesn't change
Competency - differences
Both: Witnesses must testify based on personal knowledge, have the ability to communicate, take an oath or make an affirmation to tell the truth, and claim to recall what they perceived. CA: W must also understand the legal duty to tell the truth
Competency - who can testify? - differences
Both: All Ws are competent except judge and jurors. CA: also disqualifies Ws who have been hypnotized to help refresh recollection except, in a criminal case, Ws hypnotized by police using procedures that protect against suggestion
Expert opinion - differences
Both: Opinion must be (i) helpful to jury, (ii) W must be qualified, (iii) W must believe in opinion to a reasonable degree of certainty, (iv) opinion must be supported by a proper factual basis, (v) opinion must be based on reliable principles reliably applied to the facts. Differ on application of last requirement to scientific opinions. FRE: Daubert/Kumho Standard. Non-scientific - facts/circumstances of the case. CA: Kelley/Frye General Acceptance Standard. Non-scientific/medical opinions - Kelly-Frye inapplicable - facts/circumstances.
What is the Daubert/Kumho Standard?
reliability of scientific evidence determined by four factors: Publication/peer review, error rate, results are tested and there is ability to retest, reasonable level of acceptance
What is the Kelley/Frye Standard?
Reliability of scientific opinions - one factor - opinion must be based on principles generally accepted by experts in the field. Not altered by Prop 8 because it is a standard of relevance.
Learned treatise hearsay exception - differences
FRE: Admissible to prove anything if treatise is accepted authority in field. CA: Only admissible to show matters of general notoriety or interest - VERY narrow exception and almost never applicable
Impeachment by prior inconsistent statement of W now testifying at trial - differences
Both: Not hearsay, and admissible, if offered only to impeach. FRE: If given under oath at a trial or a deposition, also not hearsay - exemption - to prove truth of facts asserted, otherwise, hearsay and inadmissible. CA: Hearsay if offered to prove truth of facts asserted, but admissible under exception, which extends to all inconsistent statements of W, whether or not under oath.
Impeachment with prior felony conviction - differences
FRE: All felonies involving false statement (e.g., perjury, forgery, fraud) admissible… no balancing of unfair prejudice against probative value—i.e., discretion—except for old convictions. Convictions for felonies not involving false statements may be admissible, but court must balance. CA: All felonies involving "moral turpitude" are admissible but court must balance; felonies not involving moral turpitude are inadmissible - Prop 8 doesn't apply because they're considered irrelevant.
Crimes involving moral turpitude - definition
moral turpitude = crimes of lying, violence, theft, extreme recklessness, sexual misconduct; but not crimes for merely negligent or unintentional acts
Impeachment with prior misdemeanor conviction - differences
FRE: All misdemeanors involving false statements are admissible… no balancing except for old convictions; no other misdemeanors admissible to impeach. All other misdemeanor convictions inadmissible to impeach. CA: CEC - misdemeanor convictions inadmissible to impeach, but in criminal cases Prop 8 makes misdemeanors involving moral turpitude crimes admissible, subject to balancing (so out in civil cases).
Impeachment with conviction evidence - extrinsic evidence - differences
Both: Extrinsic evidence allowed if otherwise admissible
Impeachment with conviction evidence - old crimes - differences
FRE: If >10 years since conviction/release from prison (whichever is later), evidence of crime is inadmissible unless probative value outweighs prejudice. CA: No specific rule but subject to § 352 balancing.
Other bad acts (non-conviction misconduct) - admissibility - differences
FRE: Admissible in civil and criminal cases, subject to balancing; must be act of lying; extrinsic evidence inadmissible but may ask W about misconduct on cross. CA - inadmissible under CEC (so out in civil cases). Prop 8 makes admissible in criminal cases if relevant (moral turpitude).
Other bad acts - forms of evidence - differences
FRE: Extrinsic evidence inadmissible; may ask W about misconduct on cross. CA - admissible, subject to balancing
Hearsay - exemptions - differences
FRE: Admission of party opponent, vicarious party admissions (authorized admission, employee admission, adoptive admission, co-conspirator admission), prior inconsistent given under oath at trial/deposition; prior consistent statement offered to rebut charge of recent fabrication/improper influence/motive; statement of identification of a person made after perceiving the person. CA: no exemptions - these are hearsay, subject to exceptions
Hearsay - authorized admissions - differences
Both: Statement by an authorized spokesperson for party is treated as an admission.
Hearsay - agent admission - differences
FRE: Statement by employee of party is party admission of employer if statement concerned matter within scope of employment that was made during employment relationship. CA: Statement by employee of party is party admission of employer only if negligent conduct of that employee is basis for employer's liability in the case under respondeat superior. (i.e., - Employer is responsible for employee's words only if employer is also responsible because of that employee's conduct)
Hearsay - prior inconsistent statement of W - differences
Both: Not hearsay if offered just to impeach. FRE: If given under oath at trial/proceeding, EXEMPTION - not hearsay if offered to prove the truth of the matter asserted; otherwise, inadmissible hearsay. CA: If offered to prove the truth of the matter asserted, hearsay but admissible under exception, whether or not under oath
Prior consistent statement of witness now testifying at trial - differences
Both: If made before bribe or inconsistent statement. FRE: exemption. CA exception.
Declaration against interest exception - differences
Both: Statement by unavailable declarant is admissible if, when made, it was against financial interest of declarant or would have subjected declarant to criminal liability. FRE: In criminal case, evidence offered to exculpate D must be supplemented by "corroborating circumstances" showing that statement is trustworthy. CA: Also within exception - statement against social interest that risks making declarant an object of "hatred, ridicule, or social disgrace in the community.
Unavailability definitions - differences
Both: Court exempts declarant from testifying due to privilege, declarant is dead or sick, proponent of statement cannot procure declarant's attendance by process or other reasonable means. FRE: Declarant refuses to testify despite court order, declarant's memory fails on the subject of her statement. CA: Declarant suffers total memory loss or refuses to testify out of fear.
Hearsay - former testimony – differences (testimony given in earlier proceeding or deposition by a witness now unavailable is admissible if …)
Both: Party against whom testimony is now offered was party in early proceeding, had opportunity and similar motive; FRE: Civil - if not party, predecessor in interest (privity-type relationship) had opportunity and similar motive. CA: Civil case - party against whom testimony is now offered was not a party in the earlier proceeding, but a party in that proceeding had opportunity to examine the witness and a similar interest in examining the W. CA: (Civil/criminal) - former testimony is offered AGAINST the person who offered it in evidence in her own behalf in the earlier proceeding, or against a successor in interest of that person.
Hearsay - former testimony - related CA law
CA: Civil - Deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes, if the deponent is unavailable at trial or lives more than 150 miles from the courthouse. Otherwise, the former testimony exception does not apply to deposition testimony given in the same case in which the hearsay is offered at trial.
Hearsay - dying declaration - differences
FRE: only civil and homicide criminal cases if declarant unavailable; declarant need not die. CA: all civil/criminal cases; declarant must be dead. Definition: declaration by person who believes he is about to die and describes causes/circumstances leading to his death.
Hearsay - present sense exception - differences
Both: Availability immaterial (no need to show declarant unavailable). FRE: Statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. CA: Narrower - statement explaining conduct of declarant made while declarant was engaged in that conduct.
OJ exception - CA only
CA: Statements not hearsay if made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recording or made to police or medical professional, under trustworthy circumstances. BUT Confrontation Clause - if made to police...
Hearsay - excited utterance exception - differences
Both: Availability immaterial. Statements related to startling event or condition are admissible when made while declarant was still under stress of excitement caused by event or condition. CA: called the spontaneous statement exception.
Hearsay - declaration of then-existing physical or mental condition - differences
Both: Availability immaterial - Statement of 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 memory or belief is not admissible to prove the fact remembered or believed.
Hearsay - statement of past or present mental or physical condition made for diagnosis or treatment
Both: Availability immaterial. FRE: A statement describing past/present mental or physical condition of the declarant or of another person is admissible if made for and pertinent to medical diagnosis or treatment. CA: Narrower - statement of past/present mental or physical condition is admissible if made for medical diagnosis or treatment, but ONLY if declarant is a MINOR describing an act of child abuse or neglect.
Hearsay - statement of past or present mental or physical condition - CA related rule
CA: Declarant must be unavailable: Statement of declarant's past physical/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.
Hearsay - business records exception - differences
Both: Availability immaterial. FRE: Records of events, conditions, opinions, or diagnoses kept in course of regularly conducted business activity is admissible if made at or near the time of matters described, by person with knowledge of the facts, and it was regular practice of business to make such record. Court may exclude if untrustworthy. CA: Rule doesn't refer to opinions and diagnoses, but courts will admit simple opinions and diagnoses; affirmative requirement of trustworthiness (Record of events or conditions kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by a person with knowledge of the facts in that record, and record is trustworthy).
Example of simple opinion and diagnosis, and one that is not?
simple = broken leg; not simple = PTSD
Hearsay - public records exception - differences
Both: Availability immaterial. FRE: Record of public office is admissible if within one of these categories: (i) describes activities or policies of the office; (ii) describes matters observed pursuant to duty imposed by law; (iii) contains factual findings resulting from an investigation made pursuant to authority granted by law, unless untrustworthy. In criminal case, can only use first category. CA: does not place same restrictions on prosecution. Record made by public employee is admissible if making record was within scope of her duties, was made at or near the time of the matters described, and circumstances indicate trustworthiness. (BUT watch for Confrontation)
Hearsay - judgment of conviction - differences
Both: Availability immaterial. FRE: A felony conviction is admissible in both civil/criminal cases to prove any fact essential to the judgment; but when offered by prosecution for purposes other than impeachment, judgments against persons other than D are inadmissible. CA: The specific exception for convictions applies only in Civil cases. But Prop 8 permits P or D in criminal case to impeach a W using criminal conviction (felony or misdemeanor) if it involves moral turpitude. Further, certified copy of a judgment of conviction is admissible under CA public records in both civil and criminal cases.
Writings and other physical evidence: authentication - Ancient documents - differences
Both: If document is sufficiently old, doesn't present irregularities and was found in place of natural custody (i.e., where you would expect such documents to be found), authenticity is established. FRE: 20 years. CA: 30 years
Self-authenticating writings - differences
Both: Authentication unnecessary for certified copies of public documents, acknowledged documents (notarized), official publications, newspapers, periodicals. FRE: business records, trade inscriptions.
Best evidence/secondary evidence rule - Prop 8
Does not apply. This means that, even in a criminal case, the Secondary Evidence Rule applies. This rule applies only where evidence is offered to prove the contents of a writing. The rule requires proof of the contents with original, but with many exceptions.
Other than the original, what tangible evidence is admissible to prove contents of a writing?
FRE: Duplicate usually admissible (“duplicate” = a copy of original produced by same impression that produced the original, e.g., carbon copy or machine-made). Not handwritten copies. CA: Duplicates, other written evidence of contents of original, such as handwritten notes.
When is testimony admissible to prove contents of a writing - differences
Both: Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony
Privileges - Prop 8
Most privilege law is exempt from coverage of TIE Amendment. This means that, even in a criminal case, the usual rules of privilege apply.
Privileges - diversity cases
In a civil suit brought in federal court under diversity jurisdiction, state privilege law applies
Attorney-client privilege - differences
Both: Communication between attorney and client or their representatives intended by client to be confidential and made to facilitate professional legal services is privileged unless waived by the client.
When is communication from corporate employee to corporation's attorney privileged? Differences
FRE: When employees/agents were authorized by corporation to make communication to the lawyer on behalf of the corporation. CA: when employee/agent is the natural person to speak to the lawyer on behalf of the corporation in the matter at hand, or employee/agent did something for which the corporation may be held liable, and the corporation instructed her to tell its lawyer what happened. As applied, no significant difference.
Privilege for witness who happens to be employee - differences
Both: no privilege (e.g., employee of Corporation happened to be parking his car at the time and witnessed the accident. His supervisor orders him to write a statement for the Corporation’s lawyers describing what he saw. Not privilege, b/c merely a witness and nothing to do with his job).
Exceptions to attorney-client privilege - differences
Both: (i) Legal services sought to further crime or fraud, (ii) two or more parties consult attorney on a matter of common interest and the communication is offered by one of these parties against another, or (iii) communication relates to alleged breach of duty between lawyer and client. CA: No privilege when lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm.
Doctor-patient and psychotherapist-patient privileges - differences
FRE: no doctor-patient privilege (but some MBE questions assume there is). CA: Both privileges exist.
Doctor-patient and psychotherapist-patient privileges - exceptions - differences
BOTH: (i) Where patient puts his physical/mental condition in issue, as in a personal injury suit, (iii) where professional services were sough to aid in crime or fraud or to escape capture after a crime/tort, (iii) in cases alleging breach of duty between patient and doctor or patient and psychotherapist. CA: (i) Psychotherapist privilege does not apply if 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, (ii) doctor-patient privilege does not apply in criminal cases or to information that the doctor is required to report to a public office.
Spousal privileges - Spousal testimonial privilege (permits W to refuse to testify against his/her spouse as to anything) - differences
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 the witness stand.
Spousal privileges - Spousal confidential communication privilege - differences
BOTH: may apply in any case and protects confidential spousal communication during marriage.
Other CA privileges
(i) privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence, (ii) privilege for penitential communications between penitent and clergy, and (iii) immunity from contempt of court for news reporter who refuses to disclose sources
Procedure for taking judicial notice - differences
BOTH: Party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice. CA exception: whether requested or not, court must take judicial notice of matters generally known within jurisdiction.