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45 Cards in this Set

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Prop 8 "Truth in Evidence" Amendment to the CA Constitution
Makes ALL RELEVANT evidence admissible in a CRIMINAL case, even if it's objectionable under the CEC (with some exceptions, noted on another card).
Exceptions to Prop 8
(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.
Logical Relevance in California
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.
Subsequent remedial measures or repairs (California)
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).
Settlements, offers to settle, and related statements
SAME: inadmissible to prove liability or fault.

CA: discussions during MEDIATION also inadmissible.
Payment, offers to pay medical expenses
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
Expressions of sympathy
CA: inadmissible if relating to suffering or death of an accident victim; but statements of fault in connection with expression is admissible.
Pleas later withdrawn, offers to plea, and related statements.
SAME: inadmissible.

CA: questionable as to whether Prop 8 makes this admissible. Raise the issue.
Character evidence in CIVIL cases.
SAME: inadmissible to prove conduct.

CA: no exceptions.

FRE: when claim based on sexual assault or child molestation.
Evidence of defendant's character to prove conduct in CRIMINAL cases.
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.
Reputation and opinion evidence in criminal case.
FRE: (i) permissible on direct, but not specific instances; (ii) all permissible on cross.

CA: Prop 8 makes it all admissible subject to balancing.
Victim's character to prove victim's conduct in criminal case.
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.
Witness competency.
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
Expert opinion.
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)
Reliability of expert opinion.
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.
Learned treatise hearsay exception.
FRE: admissible to prove anything if treatise is accepted authority in its field.

CA: only admissible to show matters of general notoriety.
Impeachment by prior inconsistent statement.
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.
Impeachment with Prior Felony Conviction.
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.
Impeachment with prior misdemeanor conviction.
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.
Extrinsic evidence to prove conviction.
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.
Non-conviction misconduct bearing on truthfulness.
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).
Admission of party opponent.
SAME: admissible. Under FRE, it's an "exemption" to hearsay, under CA it's an "exception" to hearsay rule (only a difference of semantics).
Vicarious party admission.
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.
Prior INCONSISTENT statement of witness.
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.
Prior CONSISTENT statement of witness not testifying at trial.
SAME: not hearsay (hearsay within exception in CA) if made BEFORE bribe or inconsistent statement.
Declaration against interest.
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.
Unavailability of declarant.
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.
Former testimony of unavailable witness exception to hearsay.
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.
Dying declaration exception to hearsay.
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.
Present sense impression exception to hearsay.
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.
Excited utterance exception (to hearsay).
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).
Declaration of then existing physical or mental condition. (exception to hearsay).
SAME: admissible to show the condition or state of mind of declarant. (availability immaterial).
Statement of past or present mental or physical condition made for diagnosis or treatment. (exception to hearsay).
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.
Business records exception (to hearsay).
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.
Public records exception (to hearsay).
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.
Exception to hearsay for judgment of conviction.
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.
Ancient documents.
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
Self-authenticating writings.
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.
Best (Secondary) Evidence Rule.
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.
Privileges in general.
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.
Attorney-client privilege.
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.
Doctor-patient and psychotherapist-patient privilege.
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.
Spousal privilege.
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.
California-only privileges.
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.
Judicial notice procedure.
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.