Evidence (California Distinctions) - Ca Bar Feb 2009

Front 1

Prop 8 "Truth in Evidence" Amendment to the CA Constitution

Back 1

Makes ALL RELEVANT evidence admissible in a CRIMINAL case, even if it's objectionable under the CEC (with some exceptions, noted on another card).

Front 2

Exceptions to Prop 8

Back 2

(1) exclusionary rules under US Constitution (ex: confrontation clause);
(2) HEARSAY law;
(3) privilege law;
(4) limits on CHARACTER evidence about victim in rape case;
(5) rule prohibiting prosecution from offering character evidence about defendant before he opens the door;
(6) the secondary evidence rule (best evidence rule)
(7) court's power to exclude if UNFAIR PREJUDICE exceeds probative value.

Front 3

Logical Relevance in California

Back 3

SAME AS FRE: 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 without the evidence.

CA: the fact of consequence must also BE IN DISPUTE.

Front 4

Subsequent remedial measures or repairs (California)

Back 4

SAME AS FRE: evidence of safety measures or repairs after an accident is inadmissible to prove negligence.

CA: does NOT make it inadmissible to prove defective design in a strict liability products liability action (as FRE does).

Front 5

Settlements, offers to settle, and related statements

Back 5

SAME: inadmissible to prove liability or fault.

CA: discussions during MEDIATION also inadmissible.

Front 6

Payment, offers to pay medical expenses

Back 6

SAME: inadmissible when offered to prove liability.

CA: admissions of fact made in the course of such payments or offers are also INADMISSIBLE.

FRE: inadmissible only if part of settlement offer

Front 7

Expressions of sympathy

Back 7

CA: inadmissible if relating to suffering or death of an accident victim; but statements of fault in connection with expression is admissible.

Front 8

Pleas later withdrawn, offers to plea, and related statements.

Back 8

SAME: inadmissible.

CA: questionable as to whether Prop 8 makes this admissible. Raise the issue.

Front 9

Character evidence in CIVIL cases.

Back 9

SAME: inadmissible to prove conduct.

CA: no exceptions.

FRE: when claim based on sexual assault or child molestation.

Front 10

Evidence of defendant's character to prove conduct in CRIMINAL cases.

Back 10

SAME (as to general rule): only when D opens the door.

Exceptions (where Prosecutor can introduce 1st):

SAME: in cases of sexual assault or child molestation.

FRE: where court has admitted evidence of victim's character offer by accused

CA: (i) prosecution for domestic violence, may introduce other acts of domestic violence; (ii) where court has admitted evidence of victim's character for violence, prosecution can offer evidence that D has violent character.

Front 11

Reputation and opinion evidence in criminal case.

Back 11

FRE: (i) permissible on direct, but not specific instances; (ii) all permissible on cross.

CA: Prop 8 makes it all admissible subject to balancing.

Front 12

Victim's character to prove victim's conduct in criminal case.

Back 12

SAME: prosecution cannot be first to offer character evidence to prove conduct (until D opens door).

FRE: in homicide case, evidence of victim's peaceful character. Reputation, opinion (direct and cross) specific instances (cross only).

CA: Prop 8, subject to 352 balancing. Reputation, opinion, specific instances all permissible on both direct and cross.

Front 13

Witness competency.

Back 13

SAME: personal knowledge, ability to communicate, take an oath/affirmation to tell truth, claim to recall what they perceived.

CA: witness must understand legal duty to tell truth

Front 14

Expert opinion.

Back 14

SAME: (1) opinion must be helpful to jury; (2) witness must be qualified; (3) witness must believe to reasonable degree of professional certainty; (4) opinion must be supported by factual basis; (5) **opinion must be based on reliable principles reliably applied to the facts (**CA/FRE differ as to reliability -- see other card)

Front 15

Reliability of expert opinion.

Back 15

CALIFORNIA: Kelley/Frye General Acceptance Standard: opinion must be based on principles generally accepted by experts in the field.

FRE: Daubert/Kumho Standard -- reliability based on (1) publication/peer review; (2) error rate; (3) results are tested/ retested; (4) level of acceptance.

Front 16

Learned treatise hearsay exception.

Back 16

FRE: admissible to prove anything if treatise is accepted authority in its field.

CA: only admissible to show matters of general notoriety.

Front 17

Impeachment by prior inconsistent statement.

Back 17

SAME: not hearsay if offered only to impeach.

FRE: if under oath or deposition, not hearsay to prove truth of the facts asserted; otherwise hearsay.

CA: hearsay if offered to prove truth of facts asserted, but admissible under exception which extends to all inconsistent statements of witness, whether under oath or not.

Front 18

Impeachment with Prior Felony Conviction.

Back 18

FRE: (1) all felonies involving dishonesty are admissible w/ no balancing, unless old conviction. (2) other felonies admissible subject to balancing.

CA: (1) Felonies involving "moral turpitude" are admissible subject to balancing. (2) Other felonies NOT admissible (not relevant).

Moral turpitude: crime involving lying, violence, theft, extreme recklessness, sexual misconduct.

Front 19

Impeachment with prior misdemeanor conviction.

Back 19

FRE: (1) admissible w/ no balancing if involving dishonesty; (2) all others NOT admissible to impeach.

CA: NOT admissible to impeach, but Prop 8 may make it admissible in CRIMINAL if it involves moral turpitude.

Front 20

Extrinsic evidence to prove conviction.

Back 20

SAME: can be used to prove conviction ONLY if conviction is admissible, subject to balancing.

FRE: Conviction must be less than 10 years old, subject to balancing.

Front 21

Non-conviction misconduct bearing on truthfulness.

Back 21

FRE: admissible in civil and criminal, subject to balancing.

CA: inadmissible under CEC, but if CRIMINAL, Prop 8 makes it admissible if relevant (moral turpitude).

Front 22

Admission of party opponent.

Back 22

SAME: admissible. Under FRE, it's an "exemption" to hearsay, under CA it's an "exception" to hearsay rule (only a difference of semantics).

Front 23

Vicarious party admission.

Back 23

SAME: statement of authorized spokesperson.

FRE: statement by employee of party, if statement within scope of employment.

CA: Employer responsible for employee's statement only if also responsible because of employee's conduct.

Front 24

Prior INCONSISTENT statement of witness.

Back 24

FRE: if under oath, exemption from hearsay; otherwise hearsay.

CA: hearsay only if offered to prove truth of facts asserted, but admissible under exception which extends to all inconsistent statements of witness.

Front 25

Prior CONSISTENT statement of witness not testifying at trial.

Back 25

SAME: not hearsay (hearsay within exception in CA) if made BEFORE bribe or inconsistent statement.

Front 26

Declaration against interest.

Back 26

SAME: admissible if declarant is UNAVAILABLE and his statement was against his financial interest or would have subjected him to criminal liability.

CA: statement against SOCIAL interest admissible.

FRE: in criminal, if evidence offered to exculpate defendant, he must offer "corroborating circumstances" showing defendant's statement is trustworthy.

Front 27

Unavailability of declarant.

Back 27

Declaration is UNAVAILABLE if:

SAME: (1) privilege; (2) dead/sick; (3) proponent can't get him in court.

FRE: also if (i) declarant refuses to testify; (ii) memory fails.

CA: also if (i) declarant suffers total memory loss or (ii) refuses to testify out of fear.

Front 28

Former testimony of unavailable witness exception to hearsay.

Back 28

SAME: if party against whom testimony is now offered (1) was a PARTY in other proceeding; (2) had an OPPORTUNITY to examine witness; and (3) its motive to conduct that exam was similar to present motive.

FRE: in civil case, privity relationship to someone who was a party suffices (predecessor in interest).

CA: (1) even in not a party, but a party in that earlier proceeding had an opportunity to examine witness and had similar interest; or
(2) former testimony offered against the person who offered it in evidence in her own behalf in earlier proceeding.

Front 29

Dying declaration exception to hearsay.

Back 29

FRE: (1) CIVIL: not hearsay if declaration by a person who thinks he's about to die and describes cause or circumstances leading to death. (2) same, but declarant must be dead.

CA: not hearsay for both civil and criminal only if declarant is dead.

Front 30

Present sense impression exception to hearsay.

Back 30

FRE: statement describing or explaining an event or condition made while declarant perceiving it.

CA: narrower rule-- statement explaining conduct of declarant made while declarant ENGAGED in that conduct.

CA (related rule): statement to police or medical professional describing infliction or threat of physical abuse.

Front 31

Excited utterance exception (to hearsay).

Back 31

SAME: statements related to a startling event or condition, when made while declarant was still under stress of excitement caused by that event. (availability of declarant immaterial).

Front 32

Declaration of then existing physical or mental condition. (exception to hearsay).

Back 32

SAME: admissible to show the condition or state of mind of declarant. (availability immaterial).

Front 33

Statement of past or present mental or physical condition made for diagnosis or treatment. (exception to hearsay).

Back 33

SAME: declarant availability immaterial.

FRE: statement describing past or present mental or physical condition of declarant or of another person, if made for and pertinent to medical diagnosis or treatment.

CA (narrower): same, BUT ONLY IF declarant is a MINOR describing an act of child abuse or neglect.

CA (related exception): statement made to ANYONE of mental or physical condition admissible to prove that condition, if it is an issue in the case.

Front 34

Business records exception (to hearsay).

Back 34

SAME: availability of declarant immaterial.

FRE: record of events, conditions, opinions or diagnoses kept in course of regularly conducted business activity if made at or near time of matters described by person with knowledge of the facts.

CA: same, but doesn't refer to opinions or diagnoses, but courts will admit simple opinions and diagnoses. Also, must be trustworthy.

Front 35

Public records exception (to hearsay).

Back 35

SAME: availability of declarant immaterial.

FRE: admissible if: (i) record describes activities of the office; (ii) record describes matters observed pursuant to duty imposed by law; (iii) record contains factual findings from a lawful investigation, unless untrustworthy.

CA (less restrictive for PROSECUTION): record made by public employee admissible if Ii) making record was within scope of duties, (ii) record made at or near time of matters described, and (iii) circumstances indicate trustworthiness.

Front 36

Exception to hearsay for judgment of conviction.

Back 36

SAME: availability immaterial.

FRE: felony conviction admissible in both criminal and civil to prove any fact essential to the judgment or impeachment; otherwise inadmissible.

CA: specifically applies only in civil cases, but Prop 8 permits prosecutor or defendant in criminal case to impeach a witness using criminal conviction if involves moral turpitude.

CA: certified copy of conviction is admissible in both civil and criminal under business exception rule.

Front 37

Ancient documents.

Back 37

SAME: admissible if document is (1) 20 years old or more (CA: 30), (2) doesn't present irregularities on its face; (3) and was found in a place of natural custody.

FRE: 20 years

CA: 30 years

Front 38

Self-authenticating writings.

Back 38

SAME: (1) certified copies of public documents (deeds), (2) acknowledged documents (notarized), official publications, newspapers, periodicals.

FRE: also (i) business records and (ii) trade inscriptions.

Front 39

Best (Secondary) Evidence Rule.

Back 39

SAME: general rule-- if evidence is offered to prove the contents of a writing, MUST have prove contents with original or sufficient substitute.

FRE: duplicates (carbon copy or by photocopier, but NOT handwritten) are admissible.

CA: duplicates and other written evidence, including HAND WRITTEN documents.

Front 40

Privileges in general.

Back 40

CA: most privilege law is exempt from Truth in Evidence Amendment (Prop 8). Thus, even in criminal case, privileges apply.

FRE: In civil suit brought in federal court under DIVERSITY jurisdiction, STATE privilege laws apply.

Front 41

Attorney-client privilege.

Back 41

SAME: communication is privileged if (1) between attorney and client, (2) intended by client to be confidential and (3) made to render legal services. No privilege for mere witness that happens to be employee.

Privilege applies to employees or agents if: (1) FRE: they were authorized by corporation; or (2) CA: employee is the natural person to speak to the lawyer on behalf of corporation.

Exceptions to atty-client privilege:

SAME: no privilege where (i) professional services were sought to further crime or fraud; or (ii) two or more parties consult an attorney on a common matter and the communication is later offered against the other; or (iii) communication relates to alleged breach of duty between lawyer and client.

CA: additional exception-- privilege does not apply where lawyer reasonably believes disclosure is necessary to prevent crime likely to result in death or serious bodily harm.

Front 42

Doctor-patient and psychotherapist-patient privilege.

Back 42

FRE: Only psychotherapist-patient privilege, no doctor/patient privilege.

CA: Both privileges exist, but doctor-patient NOT in criminal.

EXCEPTIONS:

SAME: privilege not applicable when: (i) patient puts his physical or mental condition in issue; or (ii) services were sought to aid in crime or fraud or to escape capture; or (iii) in case alleging breach of duty between patient and doctor (malpractice).

CA: also not privileged if: (a) psychotherapist has reason to believe patient is danger to self or others, and disclosure necessary to prevent; (b) doctor is required to report to a public office.

Front 43

Spousal privilege.

Back 43

Spousal Testimonial Privilege:

SAME: permits permits witness to refuse to testify against his or her spouse as to ANYTHING

FRE: applies only in CRIMINAL.

CA: applies in both and spouse of party is privilege not even to be called to the witness stand.

Spousal Confidential Communication Privilege:

SAME: applies in ANY case and protects confidential communications DURING marriage.

Front 44

California-only privileges.

Back 44

California recognizes the following privileges:

(1) counselor and victim of sexual assault or domestic violence;

(2) penitential communications between penitent and clergy; and

(3) immunity from contempt of court for new reporter who refuses to disclose sources.

Front 45

Judicial notice procedure.

Back 45

SAME: party must request judicial notice and, if not requested, court can take judicial notice on its own.

CA: whether requested or not, court MUST take judicial notice of matters generally known within jurisdiction.

FRE: in civil action, court instructs jury that it MAY accept judicially noticed fact.

CA: in all cases, jury is instructed that they MUST accept judicially noticed facts.