Ca Evidence Distinctions

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PROP 8: "Truth in Evidence" Amendment

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This rule makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC.

EXCEPTIONS:

(i) exclusionary rules under the US Constitution such as the Confrontation Clause;

(ii) hearsay law;

(iii) privilege law;

(iv) limits on character evidence to prove the D's conduct;

(v) the secondary evidence rule; and

(vi) CEC 352 (the court's power to exclude if unfair prejudice substantially outweighs probative value).

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3 Step Approach for CA Evidence Law Essay

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1) Raise all objections under the CEC;

2) For each objection, mention if Prop 8 overrules the objection (is the evidence relevant? Do one of the exceptions to Prop 8 apply?); and

3) If evidence seems admissible under Prop 8, balance under CEC 352.

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RELEVANCE

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CA and FRE: 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 without the evidence.

CA only: The fact of consequence must also be in dispute.

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Exclusion of RELEVANT Evidence: Subsequent Remedial Measures or Repairs

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CA and FRE: Evidence of safety measures or repairs after an accident is inadmissible to prove negligence.

FRE only: such evidence is also inadmissible to prove defective design in a products liability action based on a theory of strict liability (NOT IN CA).

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Exclusion of RELEVANT Evidence: Settlements, offers to settle, and related statements.

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CA and FRE: Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question.

CA also makes inadmissible admissions of fact made in the course of making such payments or offers. FEDERAL law only excludes such statements if part of a settlement offer.

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Exclusion of RELEVANT Evidence: Expressions of Sympathy

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CA (ONLY!) makes inadmissible in civil actions expressions of sympathy relating to suffering or death of an accident victim. But statements of fault made in connection with such an expression are not excluded.

There is no comparable federal rule.

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Exclusion of RELEVANT Evidence: Pleas later withdrawn, offers to plea, and related statements.

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CA and FRE: Inadmissible under both the FRE and CEC.

BUT: Under Prop 8, it may be admissible as relevant. The law is unclear. It may be admissible, though the court may still exclude for unfair prejudice.

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CHARACTER EVIDENCE in CIVIL cases

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INADMISSIBLE TO PROVE CONDUCT. No CA exceptions!

One exception under FRE: where D's prior acts of sexual assault or child molestation are admissible to prove D's conduct in this case.

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CHARACTER EVIDENCE in CRIMINAL cases: Evidence of Defendant's Character

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CA and FRE: Prosecution cannot be first to offer such evidence. Usually, prosecution may only rebut after D opens door by offering CE. Prop 8 does not change this.

EXCEPTIONS:

1) CA and FRE: In cases of sexual assault or child molestation, prosecution may offer evidence that D committed other acts of sexual assault or child molestation;

2) FEDERAL only: Where court has admitted evidence of victim's character offered by accused, prosecution may offer evidence that accused has same character trait;

3) CA only: In prosecution for crime of domestic violence, prosecution may offer evidence that D committed other acts of domestic violence; and

4) CA only: Where court has admitted evidence of victim's character for violence offered by accused, prosecution may offer evidence that accused has violent character (narrower version of the FRE rule in #2).

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CHARACTER EVIDENCE in CRIMINAL cases: Evidence of Reputation, Opinion, and Specific Instances

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On direct examination, evidence of reputation and opinion are ok, but not specific instances.

On cross, all are admissible under the FRE. The CEC admits only reputation and opinion to prove defendant's character, whether on direct or cross.

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CHARACTER EVIDENCE in CRIMINAL cases: Admissibility of Victim's Character to Prove Conduct

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CA and FRE: Most of the same rules apply. Prosecution cannot be first to offer character to prove conduct (the trial begins with the door closed). ***Prop 8 does not change this rule in CA.

FEDERAL only: In a homicide case, the prosecution can be first to offer evidence that victim had peaceful character if D offers evidence that V attacked first.

CA and FRE: Defendant can be the first to offer character of victim to prove conduct, then prosecution may rebut. Under FRE, reputation and opinion evidence are admissible; no specific instances on direct but OK on cross.

For CA: reputation, opinion, AND specific instances are permitted on both direct and cross to prove victim conduct.

CA has the same rape shield law.

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COMPETENCY of Witness

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CA and FRE: Both require that the witness testifies based on personal knowledge, has the ability to communicate, take an oath or affirmation to tell the truth, and claim to recall what they perceived.

In CA, a witness also must understand the legal duty to tell the truth.

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COMPETENCY of Witness (Disqualifying)

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CA and FRE: All witnesses are competent except for judge and jurors.

CA also disqualifies witnesses who were hypnotized before trial to help refresh recollection except, in a criminal case, a witness hypnotized by police using procedures that protect against suggestion.

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EXPERT OPINION

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CA and FRE: 5 requirements for admissibility:

1) Opinion must be helpful to the jury;
2) witness must be qualified;
3) witness must believe in opinion to reasonable degree of certainty;
4) opinion must be supported by a proper factual basis, and
5) opinion must be based on RELIABLE principles reliably applied to the facts.

FRE Daubert/Kumho standard: Reliability based on 4 factors: publication/peer review, error rate, results are tested and there is ability to retest, and reasonable level of competence.

CA Kelley/Frye General Acceptance Standard: Reliability of scientific opinions determined by one factor--the opinion must be based on principles GENERALLY ACCEPTED by experts in the field. Kelley/Frye is inapplicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.

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Learned Treatise Hearsay Exception

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FEDERAL: Admissible to prove anything if treatise is accepted authority in field.

CA: Only admissible to show matters of GENERAL NOTORIETY or INTEREST, meaning this exception is VERY NARROW and almost never applicable.

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IMPEACHMENT: Prior Inconsistent Statement of Witness now Testifying at Trial

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CA and FRE: Not hearsay if offered only to impeach.

FEDERAL: If given under oath at trial or deposition, also not hearsay to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.

CA: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to ALL CONSISTENT STATEMENTS OF A WITNESS, whether or not under oath.

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IMPEACHMENT: Prior Felony Conviction

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FEDERAL: All felonies involving false statement (e.g., perjury, forgery, fraud) are ADMISSIBLE... no balancing or unfair prejudice against probative value except for old convictions. Convictions for felonies NOT involving false statement 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 IN CA. Prop 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.

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"Moral Turpitude" in CA

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"Moral turpitude" = crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts.

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IMPEACHMENT: Prior Misdemeanor Convictions

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FEDERAL: All misdemeanors involving false statement are admissible... no balancing. All other misdemeanors are inadmissible to impeach.

CA: The CEC makes misdemeanor convictions inadmissible to impeach. But because of Prop 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude, subject to balancing probative value v. unfair prejudice. This means that misdemeanors are INADMISSIBLE to impeach in CIVIL cases.

Extrinsic evidence can be used under both FEDERAL and CA law to prove conviction. BUT under the FRE, if it has been more than 10 years since the conviction or release from prison (whichever is later), it is inadmissible. CA HAS NO SUCH RULE, but the balancing test must still be done, which permits consideration of ANY factor bearing on probative value, including age of conviction.

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IMPEACHMENT: Non-Conviction Misconduct Bearing on Truthfulness

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FEDERAL: Admissible in civil and criminal cases, subject to balancing; must be act of LYING; extrinsic evidence inadmissible but may ask witness about her misconduct on cross.

CA: INADMISSIBLE under CEC, but Prop 8 makes it admissible in CRIMINAL cases if relevant. To be relevant, it must be misconduct of MORAL TURPITUDE. Subject to balancing.

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HEARSAY: Exemptions vs. Exceptions

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While federal law has both exemptions to the hearsay definition and exceptions to the rule making hearsay inadmissible. CA only has EXCEPTIONS.

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HEARSAY: Admission of Party Opponent

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CA and FRE: Admission = statement by party, or someone whose statement is attributable to a party, offered by a party opponent.

FED: exemption to usual hearsay definition and thus, not hearsay.

CA: hearsay but admissible as an exception.

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HEARSAY: Vicarious Party Admissions

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CA and FRE: Statement of authorized spokesperson for party is treated as admission of that party.

FED: Statement by employee of party is party admission of employer if statement concerned matter within scope of employment and made during employment relationship.

CA: Statement by employee of party is party admission of employer ONLY WHERE NEGLIGENT conduct of that employee is basis for employer's liability in the case under respondeat superior. In other words, employer is responsible for employee's words only if also responsible because of that employee's conduct.

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HEARSAY: Prior Inconsistent Statement of Witness

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CA and FRE: PIS not hearsay if offered just to impeach.

FED: If given under oath, exemption to usual hearsay definition and not hearsay even if offered to prove the truth of the matter asserted, otherwise hearsay and inadmissible to prove those facts.

CA: Hearsay if offered to prove the truth of facts asserted but ADMISSIBLE under the exception, which extends to ALL INCONSISTENT STATEMENTS OF WITNESS, whether or not under oath.

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HEARSAY: Prior Consistent Statement of Witness Now Testifying At Trial

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Admissible under both FRE and CA law if made before bribe or inconsistent statement. Not hearsay under the FRE exemption to hearsay definition; hearsay but within exception under CEC.

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HEARSAY: Declaration Against Interest Exception

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CA and FRE: A statement by an unavailable daclarant is admissible if, at the time it was made, it was against financial interst of declarant or would have subjected declarant to criminal liability.

FRE only: In a criminal case, evidence offered to exculpate D (e.g., a confession of an unavailable declarant) D must offer "corroborating circumstances" showing that the D's statement is trustworthy.

CA only: Also within the exception is a statement against social interest because it risks making declarant an object of "hatred, ridicule, or social disgrace in the community."

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UNAVAILABILITY of Declarant

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CA and FRE: Declarant is unavailable if court exempts declarant from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarant's attendance by process or other reasonable means.

Following are two additional bases for unavailability applicable only under FEDERAL law only:
--declarant refuses to testify despite court order; or
--declarant's memory fails on the subject of her statement.

If declarant suffers total memory loss or refuses to testify out of fear, CA regards declarant as unavailable.

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UNAVAILABILITY: Former Testimony Exception

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Testimony given in earlier proceeding or depo by a witness now unavailable is admissible in current proceeding if:

CA and FRE: party against whom testimony is now offered was a party in the earlier proceeding, had opportunity to examine the witness, and its MOTIVE to conduct that exam was similar to the motive it has now.

FED only: in a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but is in a privity-type relationship with someone who was a party to that earlier proceeding and who had an opportunity and an interest to conduct that exam similar to the interests of the party against whom testimony is now offered.

CA only: In a civil case, party against whom testimony is bow offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that examination similar to the interests of the party against whom the testimony is now offered, or

CA only: the 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 such person

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Depo Testimony: CA Distinction

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Depo 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 depo testimony given in the same case in which the hearsay is offered at trial.

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HEARSAY: Dying Declaration Exception

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FEDERAL: Declaration by person who believes he is about to die and describes cause/circumstances leading to his death is admissible in a civil action and in a homicide prosecution if declarant is unavailable. Declarant need not die.

CA: Exception applies in all civil and criminal cases and DECLARANT MUST BE DEAD.

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HEARSAY: Present Sense Impression Exception

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No need to show declarant unavailable.

FRE: A astatement describig or expclaining an event o condition made while declarant was perceiving the event or condition or immediately thereafter.

CA exception is NARROWER: A statement explaining conduct of the delcarant made while the declarant was engaged in that conduct.

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HEARSAY: "The O.J. Exception"

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Statement describing infliction or threat of physical abuse.

But watch for the Confrontation Clause issue!

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HEARSAY: Excited Utterance Exception

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CA and FRE: 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: Exception for declaration of then existing physical or mental condition

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CA and FRE: A 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 a memory or belief is not admissible to prove the fact remembered or believed.

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HEARSAY: Exception for statement of past or present physical condition made for diagnosis or treatment

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No need to show declarant unavailable.

FRE: A statement describing past or 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 exception is NARROWER: A statement of past OR present mental or physical condition is admissible if made for medical diagnosis or treatment, BUT ONLY IF THE DECLARANT IS A MINOR DESCRIBING AN ACT OF CHILD ABUSE OR NEGLECT.

BUT: 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: Business Records Exception

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No need to show declarant unavailable.

FRE: Record of events, conditions, opinions or diagnoses kept in the course of regularly conducted business activity is admissible if made at or near 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 exception does not refer to OPINIONS or DIAGNOSES, but courts still will admit simple opinions and diagnoses: A record of events or conditions kept in course of regularly conducted business actiivity 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.

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HEARSAY: Public Records Exception

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No need to show declarant unavailable.

FED: The record of a public office is admissible if it is within ONE of the following categories:

(i) The record descirbes the activities or policies of the office;

(ii) The record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or

(iii) The record contains factual findings resulting from an investigation prosecution cannot use #(iii).

CA does not place same restrictions on prosecution: Record made by a public employee is admissible if making record was within 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: Admissibility of Judgement of Conviction

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No need to show declarant unavailable.

FEDERAL: A felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than IMPEACHMENT, judgments against person other than the accused are INADMISSIBLE.

CA: The specific exception for convictions applies only in civil cases. Prop 8 does not change this hearsay law. BUT, Prop 8 permits the prosecutor or D in a criminal case to IMPEACH a witness using a CRIMINAL CONVICTION (felony or misdemeanor) if it involves MORAL TURPITUDE. Further, a certified copy of a judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.

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AUTHENTICATION: Ancient Documents

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If a document is (Fed: 20; CA: 30) years old or more, does not on its face present irregularities (e.g., erasures), and was found in a place of natural custody (i.e., where you would expect such documents to be found), authenticity is established.

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AUTHENTICATION: Self-AUTHENTICATING Writings

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For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds), acknowledged documents (i.e., docs where the original signature is attested before a notary to be valid), official publications (governmental pamphlets), newspapers, periodicals, business records (FEDERAL only), and trade inscriptions (FEDERAL only).

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SECONDARY EVIDENCE RULE

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(CA counterpart of the Best Evidence Rule)

This rule applies only where evidence is offered to prove the CONTENTS OF A WRITING (defined to include any tangible collection of data). The rule requires proof of contents with original, but with many exceptions.

FED: Duplicates usually admissible; handwritten copy is not a duplicate.

CA: Admits duplicates and other written evidence of contents of original, such as handwritten notes.

FED and CA: Testimony regarding contents of writing may be admissible where original is LOST or DESTROYED, unless bad faith by proponent of testimony.

Exempt from Prop 8 in CA. This means that, even in a criminal case, the Secondary Evidence Rule applies.

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PRIVILEGES in general

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In a civil suit brought in FEDERAL court under diversity jurisdiction, STATE privilege law applies.

Most privilege law is exempt from coverage of the Truth in Evidence Amendment, which means that, even in a criminal case, the usual rules of privilege apply.

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PRIVILEGE: Attorney-Client Privilege

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FED and CA: A communication between an attorney and client or their representatives intended by client to be confidential and made to facilitate rendition of professional legal services is privileged unless waived by the client.

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PRIVILEGE: Corporate Employees

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FEDERAL: Privilege applies to communications from employees/agents if they were AUTHORIZED by the corporation to make the communication to the lawyer on behalf of the corporation.

CA: privilege applies to communications from employee/agent if she is the NATURAL PERSON to speak to the lawyer on behalf of the corporation in the matter, 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, there is no significant difference in these standards.

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PRIVILEGE: Where mere witness happens to be an employee

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No privilege for mere witness who happens to be an employee.

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PRIVILEGE: Exceptions

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FEDERAL and CA: Privileges do not apply where:

(i) Professional services were sought to further CRIME or FRAUD;

(ii) Two or more parties consult an 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.

Additional Exception in CA ONLY:

Privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm.

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PRIVILEGE: Doctor-Patient and Psychotherapist-Patient Privileges

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FEDERAL: There is a psychotherapist-patient privilege but no doctor-patient privilege.

In CA, both privileges exist.

EXCEPTIONS in both FED and CA:

(i) Where the patient puts his physical or mental condition in issue, as in a personal injury suit;

(ii) Where professional services were sought to aid in crime or fraud or to escape capture after a crime or tort;

(iii) In case alleging breach of duty between patient and doctor or psychotherapist, as in a malpractice action.

Additional Exceptions in CA ONLY:

(i) Psychotherapist privilege does not apply if the 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; and

(ii) Doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gun-shot wounds and some communicable diseases).

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PRIVILEGE: Spousal Privileges

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Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything.

FED: 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.

FED and CA: Spousal confidential communication privilege may apply in any case and protects confidential spousal communications during marriage.

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PRIVILEGE: Other CA Privileges

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CA also recognizes:

(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.

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JUDICIAL NOTICE

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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 the jurisdiction.

FEDERAL: In a civil case, court instructs jury that it must accept judicially noticed fact. In criminal case, court instructs jury that it MAY accept judicially noticed fact, but is not required to do so.

CA: Court instructs jury that it MUST accept judicially noticed fact in both civil and criminal cases.