California Evidence

Front 1

Proposition 8- truth in evidence amendment to the CA constitutoin

Back 1

Makes all relevant evidence admissible in CRIMINAL cases, even if it is objectionable under the california evidence code

Front 2

Exceptions to the application of Prop 8

Back 2

i) EXCLUSIONARY RULES under US constitution such as Confrontation Clause
ii) HEARSAY law
iii) PRIVILEGE law
iv) limits on CHARACTER EVIDENCE to prove DEF conduct
v) limits on CHARACTER EVIDENCE to prove VICTIMS conduct
vi) SECONDARY EVIDENCE rule (CA best evidence rule)
vii) CEC 352- courts power to exclude if unfair prejudice substantially outweighs probative value (BALANCING)
viii) RAPE SHIELD
ix) expert opinion kelley/frye
iix) pleas later withdrawn, offers to plea: prop 8 may make this admissible (unclear)

Front 3

CA approach

Back 3

1) raise all objections under the CEC
2) for each objection- mention prop 8 applies or if prop 8 exception applies
3) if evidence is admissible, balance under CEC 352

Front 4

CA 352

Back 4

courts power to exclude if unfair prejudice substantially outweighs probative value

Front 5

CA Relevance (additional requirement)

Back 5

In CA, the "fact of consequence" must also be in dispute

EX: murder prosecution- def admits to shooting victim but pleads insanity-- prosecution witness testifies he saw def shoot victim
*not relevant under CA- fact of consequence not in issue

Front 6

CA differences -- Public Policy

i. subsequent remedial measures
ii. settlements
iii. payment or offers to pay
iv. expressions of sympathy
vi. pleas later withdrawn, offers to plea

Back 6

i. subsequent remedial measures: does not apply to products liability
ii. settlements offers: mediation admissible
iii. payment or offers to pay: admission of fact also INadmissible
iv. expressions of sympathy: inadmissible in CIVIL actions (does not include statements of fault)
vi. pleas later withdrawn, offers to plea: prop 8 may make this admissible (unclear)

Front 7

CA differences-- Character evidence


CIVIL

Character evidence to prove conduct in Civil

----

CRIMINAL- admissibility of def character to prove conduct

ii. Exceptions where prosecution may be the first to offer evidence of def's character to prove def's conduct:

iii. domestic violence or elder abuse:

iv. evidence of victims charter for violence by accused:

*What type of character evidence is admitted on direct and cross?

Back 7

CIVIL

Character evidence to prove conduct in Civil - no california exceptions (rem. FRE- sexual assault or child molestation)

----

CRIMINAL

ii. Exceptions where prosecution may be the first to offer evidence of def's character to prove def's conduct-- no rule for pros to enter evidence of SAME character trait of accused (SEE 4)

iii. domestic violence or elder abuse: pros may offer evidence that def committed other acts

iv. evidence of victims charter for VIOLENCE by accused: prosecution may offer evidence that the accused has VIOLENT CHARACTER

*What type of character evidence is admitted on direct and cross?
- reputation and opinion only (no spec acts)***for def character

Front 8

CRIMINAL-- Admissibility of evidence of Victim's Character to prove conduct

In a fed homicide case the prosecution can first to offer evidence that victim had peaceful character if def offers evidence that victim attacked first... in CA?

When can reputation, opinion and specific evidence be used for victim's character evidence?

Back 8

In a fed homicide case the prosecution can first to offer evidence that victim had peaceful character if def offers evidence that victim attacked first... in CA?
-- no such rule in CA


When can reputation, opinion and specific evidence be used for VICTIM'S character evidence?
***on both direct AND cross

Front 9

Testimonial Evidence...

Competency- additional witness capacity requirement:

Competency- additional disqualification:

Expert opinion:

Learned Treatise hearsay exception:

Back 9

Competency- additional witness capacity requirement:
- In CA, witness must also understand legal duty to tell the truth


Competency- additional disqualification: also disqualifies witnesses who were hypnotized before trial to help refresh recollection except in criminal case were witness was hypnotized by police

Expert opinion: CA uses Kelley/Frye (Prop 8 does NOT apply here)

Learned Treatise hearsay exception: CA- only admissible to show matters of general notoriety or interest (in other words- this exceptions is almost never applicable)

Front 10

Evidence of Witness Credibility

Impeachment by prior inconsistent statement of witness now testifying at trial:

Back 10

Impeachment by prior inconsistent statement of witness now testifying at trial: In CA, hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath

pg 49 examples

Front 11

Impeachment with prior felony conviction

Federal Only: all felonies involving false stmt are admissible (fraud)...no balancing of unfair prejudice against probative value except for old convictions. Convictions for felonies not involving false stmt may be admissible but court must balance

Back 11

Impeachment with prior felony conviction:



CA only: all felonies involving "moral turpitude" are admissible but court must balance
- felonies not involving moral turpitude are inadmissible in CA

Prob 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment

Moral Turpitude: crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts
-(crimes where your mother would be very disappointed)

Front 12

Impeachment with prior misdemeanor convictions

FED: all misdemeanors involving false statement are admissible...again there is no balancing of unfair prejudice against probative value except for old convictions
- all other misdemeanor convictions are inadmissible to impeach

Back 12

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 or moral turpitude subject to balancing probative value v. unfair prejudice
- this means misdemeanors are inadmissible in CA to impeach in civil cases

Front 13

Conviction Evidence - Felony and Misdemeanor

Under Federal law if the conviction is otherwise admissible under the above rules, but it is more than 10 years since the conviction or release from prison (whichever is later), it is inadmissible under federal law unless probative value outweighs prejudice (reverse balancing)

Back 13

IN CA-- no such specific rule. Under the above rules, CA courts may balance, which permits consideration of any factor bearing on probative value, including age of conviction

Front 14

Non-conviction misconduct bearing on truthfulness

Back 14

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.

California: Inadmissible under CEC but Prop 8 makes it admissible in criminal cases if relevant; to be relevant the misconduct must be act of moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct); both cross-examination and extrinsic evidence permitted, subject to balancing.

Front 15

Hearsay


-Prop 8

- Exceptions/Exemptions

Back 15

-Prop 8
Hearsay law is exempt from coverage under the truth in evidence amendment of prop 8...this means that even in criminal cases, the usual rules of evidence apply

- Exceptions/Exemptions (remember exemptions are considered NOT hearsay)
California law has only exceptions to hearsay (no exemptions)

Front 16

Admission of party opponent (hearsay)

exception or exemption?

vicarious party admissions...

Back 16

In CA this is an exception not an exemption as it is in FED


Vicarious Party Admissions:
Federal and California: Statement of authorized spokesperson for party is treated as admission of that party.

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

California: 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, EMPLOYEE IS RESPONSIBLE FOR EMPLOYEE'S WORDS ONLY IF ALSO RESPONSIBLE BECAUSE OF THAT EMPLOYEE'S CONDUCT

Front 17

Prior Inconsistent Statement of witness

Prior consistent statement of witness now testifying at trial

Declaration against interest exception
Federal and California:
(Federal and California: A statement by unavailable declarant is admissible if, at time it was made, it was against financial interest of declarant or would have subjected declarant to criminal liability)

When is declarant unavailable:
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, declarant’s memory fails on the subject of her statement.

Back 17

Prior Inconsistent Statement of witness --California: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath

Prior consistent statement of witness now testifying at trial- Admissible under both Federal and California law if made before bribe or inconsistent statement. Not hearsay under FRE exemption to hearsay definition; hearsay but within exception under CEC.

Declaration against interest exception.
---California 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.”

When is declarant unavailable:
If declarant suffers total memory loss or refuses to testify out of fear, California regards declarant as unavailable.

Front 18

Former testimony exception

Back 18

California only: in a civil case, party against whom testimony is now 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 exam similar to the interests of the party against whom the testimony is now offered,

or

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.

Front 19

Former testimony exception...

former testimony- deposition testimony

Back 19

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.

Front 20

Dying Declaration Exception

Back 20

Exception applies in all civil and criminal cases AND declarant must be dead

Front 21

Present sense impression exception

Federal: A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

CA exception---


Related California Exception (OJ rule):

Back 21

California exception is narrower: A statement explaining conduct of the declarant made while the declarant was engaged in that conduct. (thus declarant must be the actor and describer)


Related California Exception: Statement describing infliction or threat of physical abuse (the “OJ Exception”). Watch out for Confrontation issue! Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances.

Front 22

Exception for statement of past or present mental or physical condition made for diagnosis or treatment--
No need to show declarant unavailable. Federal: 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.

Related California exception:

Back 22

California 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.


Related California exception: A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case—no requirement that statement be made for medical purposes. DECLARANT MUST BE UNAVAILABLE

Front 23

Business records exception..
No need to show declarant unavailable. Federal: Record of events, conditions, opinions or diagnoses kept in 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.

Back 23

California 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 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.

Front 24

Public Records Exception...
No need to show declarant unavailable. Federal: The record of a public office is admissible if it within one of the following categories: (i) the record describes 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 made pursuant to authority granted by law, unless untrustworthy. In a criminal case, prosecution cannot use (iii).

Back 24

California 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.

Front 25

Exception for judgment of conviction

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 persons other than the accused are inadmissible.

Back 25

California: 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 defendant 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 California public records exception in both civil and criminal cases.

Front 26

Authentication:

- Ancient documents

Back 26

If document is (Federal 20, California 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.

Front 27

Best Evidence Rule (Called “Secondary Evidence Rule” in California).

- Other than the original, what tangible evidence is admissible to prove contents of a writing? Federal: Duplicates usually also admissible. “Duplicate” = a copy of original produced by same impression that produced the original (e.g., a carbon copy) or by a machine (e.g., photocopier, camera). Handwritten copy is not a duplicate.

Back 27

Exempt from Prop. 8 in California.

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

Front 28

Attorney-Client Privilege:

-Federal: Privilege survives death of client.

-When is a communication from a corporation employee to the corporation’s attorney privileged? 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.

Additional exception in California only:

Back 28

- California: Privilege ends once estate of dead client is distributed and executor of estate is discharged

-California: 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 (e.g., the corporation’s in-house counsel or CEO), 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 the scope of these standards.

Additional exception in California 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.

Front 29

Doctor-Patient and Psychotherapist-Patient Privileges

- Federal: There is a psychotherapist-patient privilege but no doctor-patient privilege. (But remember, sometimes MBE questions assumes existence of Doctor-Patient Privilege.)

-Exceptions. Federal and California exceptions for both privileges: (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.

Back 29

- California: Both privileges exist.

- (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, (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).

Front 30

Spousal Privileges

Federal: applies only in criminal cases.

Back 30

California: applies in civil and criminal cases and spouse of party is privileged not even to be called to witness stand.

Front 31

Other California Privileges.

Back 31

California 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.

Front 32

Judicial Notice

- Party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice.

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

Back 32

- California exception: whether requested or not, court must take judicial notice of matters generally known within jurisdiction.

- California: Court instructs jury that it must accept judicially noticed fact in both civil and criminal cases.