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88 Cards in this Set

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When do we apply California Law?
Only on essay, and only when specifically told to do so
Exceptions to CA Truth in Evidence Amendment
Exclusionary rules under U.S. Constitution - e.g., Confrontation Clause; hearsay; privileges; limits on character evidence about victim in rape case; rule prohibiting prosecution from offering evidence of D's character before D opens the door; secondary evidence rule; CEC 352 balancing. UNCLEAR: Please later withdrawn/offers to plea/related statements)
How to apply CA 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/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
Expressions of sympathy - difference
CA only (no similar FRE): 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…)
Pleas later withdrawn, offers to plea, related statements - differences
Both: Inadmissible. 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/child molestation, D's prior acts of sexual assault/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: Both: In cases of sexual assault/child molestation, P may offer evidence that D committed other acts of sexual assault or child molestation. 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). CA: In prosecution for crime of domestic violence, P may offer evidence that D committed other acts of domestic violence; 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 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, 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 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 - 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 helpful to jury, W must be qualified, W must believe in opinion to a reasonable degree of certainty, opinion must be supported by a proper factual basis, opinion must be based on reliable principles reliably applied to the facts. FRE: Daubert/Kumho Standard - reliability of scientific evidence determined by four factors: Publication,/peer review, error rate, results are tested and ability to retest, reasonable level of acceptance. Non-scientific - facts/circumstances. CA: 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 standard of relevance. Non-scientific/medical opinions - Kelly-Frye inapplicable - facts/ circumstances.
Q on expert testimony
FRE - Daubert/Kumho to non-scientific evidence?!
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
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 trial or 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 (perjury, forgery, fraud) admissible… no balancing/discretion except for old crimes. 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
Lying, violence, theft, extreme recklessness, sexual misconduct; not crimes for merely negligent/unintentional acts
Impeachment with prior misdemeanor conviction - differences
FRE: Crimen falsi misdemeanors admissible… no balancing except old convictions; no other misdemeanors admissible 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.
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 - admissibility - differences
FRE: Admissible in civil/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: Inadmissible; may ask W about misconduct on cross. CA - admissible, subject to balancing
Hearsay - exemptions - differences
FRE: Party admission, authorized admission, agent 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 part is party admission of employer 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 near say 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/inconsistent. 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 financial liability. FRE: If criminal case, evidence offered to exculpate D must be supplemented by "corroborating circumstances" showing that statement is trustworthy. CA: Also 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/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
Both: Party against whom testimony is now offered was party in early proceeding, had opportunity and similar motive; FRE: Civil - party or 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, or, (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: 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
Hearsay - present sense exception - differences
Both: Availability immaterial. FRE: Statement describing or explaining an event or admission made while declarant was perceiving the event 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: Available 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.
Hearsay - declaration of then-existing physical/mental condition - differences
Both: 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/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 /physical condition is admissible if made for medical diagnosis or treatment, but ONLY if declarant is MINOR, describing an act of child abuse/neglect.
Hearsay - statement of past/present mental or physical condition - CA related rule
CA: Declarant 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 time of matters described, by person with knowledge of the facts, and it was regular practice of business to make such record. Excludable if untrustworthy. CA: Rule doesn't state opinions and diagnoses, but courts will admit; affirmative requirement of trustworthiness.
Hearsay - public records exception - differences
Both: Availability immaterial. FRE: Record of public office is admissible if within one of these categories: describes activities of the office; describes matters observed pursuant to duty imposed by law; 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 erestrictions on prosecution. Record made by public employee is admissible if making record was within scope of her duties, was made at /near the time of the matters described, and circumsataces indicate trustworthinesss. (BUT watch for Confrontation)
Hearsay - judgment of conviction - differences
Both: Availability immaterial. FRE: A felony conviction is admissibile in both civil/criminal cases to prove any fact essential to the judgment; otherwise, judgments against persons other than D are admissible only for impeachment. CA: 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. Futher, certified copy of a judgment of conviction is admissible under CA public records in both civil/criminal cases.
Ancient documents - differences
Both: If document is sufficiently old, doesn't present irregularities and was found in place of natural custody, authenticity is established. FRE: 20 years. CA: 30 years
Self-authenticating writings - differences
Both: Authentication unnecessary for certified copies of public documents, acknoledged documents (notarized), official publications, newspapers, periodicals. FRE: Business records, trade inscriptions
Best evidence/secondary evidence rule - Prop 8
Does not apply.
Other than the original, what tangible evidence is admissible to prove contents of a writing?
FRE: Duplicate (carbon copy or machine-made). Not handwritten copies. CA: Duplicates, other written evidence of contents of original, such as hadnwritten 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.
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 corpoation in the matter at hand. As applied, no significant difference
Privilege for witness who happens to be employee - differences
Both: None.
Exceptions to attorney-client privilege - differences
Both: Legal services sauht to further crime/fraud, 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 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/psychotherapist-patient privileges - differences
FRE: no doctor-patient privilege (but some MBE questions assume there is). CA: Both privileges exist
Doctor-patient/psychotherapist-patient privileges - exceptions - differences
BOTH: Where patient puts his physical/mental condition in issue, as in a personal injury suit, where professional services were sough tto aid in crime/fraud or to escape capture after a crime/tort, in cases alleging breach of duty between patient/doctor or patient/psychotherapist. CA: Psycotherapist privilege does not apply if psychotherapist has reaonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the dnager, doctor-patient privlege does not apply in criminal cases or to inormation that the doctor is required to report to a public office.
Red herrings (5)
Not the best evidence, Dead Man's Statute, Self-serving and prejudicial, Res gestae, TV objections ("Witness is not on trial!" "The evidence calls for an inference upon an inference")
Irrelevant evidence is…
never admissible
Relevant evidence…
might be admissible
Evidence is relevant if…
it has any tendency to make the existence of any fact that is of consequence to the determination of the matter more or less probable than it would be without the evidence
Is evidence about contract party's secret, subjective intent re entering into contract relevant?
No, because it is not "of consequence"
How to tell if something is "of consequence?"
Use knowledge of substantive law in the case
When do courts have discretion to exclude relevant evidence?
If probative value is substantially outweighed by unfair prejudice (look for: emotionally disturbing, admissible for one purpose but inadmissible for another), confusion or waste of time, or policy reasons
Any time evidence is admissible for one purpose but not for another, raise possibility of…
Limiting instruction or court's discretion to exclude - unfair prejudice
Similar occurrences evidence means…
Evidence about other people or events
Evidence of someone doing same thing at same time as injured P may be relevant…
if it makes it more likely that D caused P's injury
Evidence of prior accidents/claims by P is…
usually irrelevant, unless it shows a pattern of P bringing fraudulent claims, or a relevant preexisting condition
Evidence of previous similar acts may be relevant…
to prove intent (e.g., unbroken string of consistently hiring male over qualified female)
Evidence of previous similar acts may be relevant to rebut…
a defense of impossibility (eyeball in Whoopsi Cola) - and remoteness in time won't block it
Evidence of comparable sales of similar property in the same area may be relevant…
to establish value
Is habit evidence admissible to show conduct in accordance with habit?
Yes
What is the difference between habit evidence and character evidence?
Habit evidence describes specific conduct and makes no moral judgment; character evidence says something general about a person and conveys a moral judgment
How many times does someone have to do something for it to be a habit?
Lots - more than a couple
Routine business practice evidence is relevant…
to show that conduct of an entity was in conformity with that practice on the occasion in question
Industrial custom evidence is relevant…
to prove standard of care in negligence case.
Character evidence approach (4 steps) -
What is the purpose for which the evidence is offered? (Character in issue? Circumstantial evidence of conduct in conformity with character? To impeach or support credibility?); What method is used to prove character? (Specific acts/Opinion/Reputation); Civil or criminal case? Is the trait pertinent?
Civil case - character evidence is _________ to prove conduct.
Inadmissible, EXCEPT for a civil claim based on sexual assault or child molestation - then, D's prior acts of sexual assault or child molestation are admissible to prove conduct
Civil case - defamation - character evidence is ___________.
Admissible, because character is in issue in a defamation case
Civil cases - character is in issue in these types of cases:
Defamation, negligent entrustment (parents negligent to give car to teenage son whom they knew to be reckless), child custody.
Civil cases - what form of character evidence may be used to prove character when character is in issue?
All - opinion, reputation, specific acts
Criminal case - character evidence is never offered to prove…
Character in issue
Character is only in issue in…
civil cases
Prosecution can be the first to offer evidence of D's character only …
In sexual assault/child molestation cases, P can be first to offer evidence that D committed other sexual assaults/child molestations; Where court has admitted evidence of V's character offered by D, prosecution can be first to offer evidence that D has same character trait
If D witness in an assault case testifies that D has reputation for being gentle/non-violent. Can P introduce opinion/reputation/specific acts evidence showing D is honest to rebut?
No - honesty is not a pertinent trait here