CAB CA evidence

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  1. "Truth in evidence" of Prop 8 & exceptions
    • All relevant evidence is admissible in a criminal prosecution
    • Exceptions:
    •  - exclusionary rules under US constitution
    •  - Hearsay
    •  - Privilege
    •  - limits on character evidence to prove D's conduct
    •  - Secondary evidence rule (best evidence rule)
    •  - CEC 352 (If probative value substantial outweighed by unfair prejudice)
  2. Three step approach to CA essay questions
    • Raise all objections under CEC
    • Mention if Prop 8 overrules the objections
    • Balance probative value against unfair prejudice
  3. CA definition of Relevant
    • 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
    • and the fact of consequence must be in dispute
    • Distinction: D admits to shooting. Witness says he say D shoot V. Not relevant.
  4. CA Exclusion of relevant evidence for policy reasons
    • Subsequential remedial measure or repairs (Fed - NO; CA - Admissible in strict liability case)
    • Mediation discussions (in addition to Fed)
    • Medical expenses - admissions of fact made in the course of making such payments or offers (in addition to Fed)
    • Expression of sympathy related to suffering or death of an accident victim (admissible under Fed)
    • Pleas later withdrawn, offers to plea, and related statements (maybe admissible under Pro 8?)
  5. CEC Character evidence in civil cases
    • Inadmissible to prove conduct
    • (Fed allows where claim is based on sexual assault or child molestation)
  6. CEC Character evidence in criminal cases - D
    • Prosecution cannot open the door (CA and Fed - prop 8 does not change this)
    • Exceptions:
    •  - In cases of sexual assault/child molestation (CA and Fed)
    •  - Domestic violence/elder abuse (CA only)
    •  - Crt admitted evidence of victim's violent nature, prosecution may do the same (CA narrower than Fed - violent character only - Fed admits any trait)
    • CEC ONLY allows reputation and opinion on direct or cross (not specific instances, unless used to impeach witness)
  7. CEC Character evidence in criminal cases - victim
    • homicide case: if D offers evidence that V attacked first, Prosecution may then offer evidence of peaceful nature (Fed OK, CA - NOT must be evidence of character)
    • (CA) reputation, opinion, specific instances ok on direct and cross
    • (FED) reputation and opinion ok; no specific instances on direct, but OK on cross
  8. CEC test for competency
    • Witness must testify on personal knowledge, have ability to communicate, take an oath or affirmation to tell the truth, and claim to recall what they perceived
    • and must understand legal duty to tell the truth (CA addition)
  9. CEC competency - hypnotized witness
    • Fed - ok
    • CA - disqualifies witnesses hypnotized to recollect
    •  - except: criminal case - when by police using procedures to protect against suggestion
  10. CA difference expert opinion - basis on reliable principles reliably applied to the facts
    • Kelley/Frye General Acceptance Standard
    • The opinion must be based on principles generally accepted by experts in the field
    • (Fed - Daubert test does not require generally accepted)
  11. CA Learned Treatise Hearsay Exception
    • CA - only admissible to show matters of general notoriety or interest (too narrow to be useful)
    • Fed - admissible to prove anything if treatise is accepted authority in field
  12. Impeachment - prior inconsistent statement of witness testifying at trial
    • Fed & CA: no hearsay if used only to impeach
    • CA - all inconsistent statements of witness, whether or not under oath, can be used to prove matter asserted
    • Fed - must be under oath at trial or deposition to be used to prove the facts asserted
  13. Impeachment - prior felony conviction
    • CA: Felonies involving "moral turpitude" only are admissible for impeachment purposes
    •  - must use PV/unFP balancing test
    •  - moral turpitude crimes: lying, violence, theft, extreme recklessness, sexual misconduct
    • Fed: crimes of dishonesty are always admissible; no balancing test unless over 10 yrs old
    •  - all other felonies Fed uses PV/unFP balancing test
  14. Impeachment - misdemeanor
    • CA: misdemeanors involving "moral turpitude" may be admissible; PV/unFP; otherwise, generally inadmissible 
    •  - INADMISSBLE in CIVIL all cases
    • Fed: misdemeanors involving lying are admissible automatically
    •  - older convictions subject to PV/unFP
  15. Impeachment - non-conviction misconduct bearing on truthfullness
    • CA: Inadmissible under CEC but Prop 8 makes it admissible in criminal cases if act of moral turpitude
    •  - both cross and extrinsic evidence permitted
    •  - subject to PV/unFR
    • Fed: Admissible in Civil and Crim cases
    •  - subject to PV/unFR
    •  - must be act of lying
    •  - extrinsic evidence inadmissible, cross only
  16. CA Judicial notice
    • Whether requested or not, Judge is required to take notice of matters generally known within jurisdiction (Fed & CA - party may otherwise request or judge may sua sponte)
    • CA - Crt instructs jury it must accept judicially noticed facts in both criminal and civil (Fed - in criminal cases are rebuttable)
  17. Hearsay - opposing party statement
    • Statement by party/attributable party offered by the part opponent (CA - exception, Fed - exemption)
    • CA - employee statement is attributable to employer only where employee's negligent conduct is at issue 
    •  -  narrower than Fed - allows any statement made while employed and in scope of employment
  18. Hearsay - declaration against interest
    • Statement by unavailable declarant if, at the time made, was against the interest of the criminal or financial interest of the declarant
    • CA: includes statement against social interest, b/c hatred, ridicule, or social disgrace in the community
    • Fed: only applies if against financial/crim liability interest
  19. Hearsay - unavailability
    • Declarant is unavailable if crt. exempts from testifying due to privilege, dead/sick, or proponent of statement cannot procure attendance
    • CA: adds if declarant suffers total memory loss or refuses to testify out of fear
    • Fed: adds refuses to testify despite crt order or declarant's memory fails
  20. Hearsay - Former Testimony - similar interest
    • CA: FT is offered against a party
    • -1) who was present at 1st case, or
    • -2) in a civil case, against someone with a similar interest as a party in the 1st case
    • Fed: FT is offered against
    • -1) a party who was present in the 1st case, or
    • -2) in civil case, against a party in privity w/ party to 1st case
    • CA addition: may be offered against person/successor in interest who offered it in prior case for their own benefit
    • Witness must be unavailable
  21. Hearsay - dying declaration
    • CA: may use in all civil and criminal cases
    •  - declarant must be dead
    • Fed: may use in civil action and homicide action
    •  -  declarant must be unavailable, but need not be dead
  22. Hearsay - Present sense impression
    • CA: a statement explaining conduct of the declarant made while declarant was engaged in that conduct
    • Fed: declarant describing anything simultaneously with its occurrance
  23. Hearsay - Statement describing infliction or threat of physical abuse
    • (CA Only)(look out for confrontation clause 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
  24. Hearsay - Statement of past or present mental physical condition
    • CA: only available for minors describing an act of child abuse or neglect
    • Fed: if made for and pertinent to medical diagnosis or treatment
    • CA related exception: statement of past physical/mental condition, including statement of intent, is admissible to prove that condition if it is at issue
    • - declarant must be unavailable
  25. Hearsay - business records
    • CA: Will admit records of events or condition 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
    • Note: absence of "opinions or diagnosis" (Fed); however, crt will accept simple ones
  26. Hearsay - public records
    • CA: Record is admissible in prosecution if:
    • - record made by public employee making record was a part of job duties
    • - made at or near the time or the matters described
    • - circumstances indicate trustworthiness (corroborating evidence?)
    • Fed: restrictions on use of police reports
  27. Authentication - ancient documents
    • CA - requires 30 years
    • Fed - 20 years
    • both require 
    • - no irregularities on the face
    • - found in natural place of custody
  28. Authentication - self-authenticating writings
    • CA: certified copies of public docs, acknowledgment docs, official publications, newspapers, periodicals
    • - no business records or trade transcripts (allowable under Fed)
  29. Authentication - Secondary Evidence Rule (Best Evidence)
    • Exempt from Prop 8 - apples in criminal cases
    • CA: duplicates and other written evidence of contents of original, such as hand written notes
    • Fed: handwritten notes not allowed
  30. Privileges - Attorney-client - w/ estate
    CA: ends once estate of dead client is distributed and executor is discharged
  31. Privileges - Attorney-client - Co.'s employee
    • No major difference between CA and Fed
    • CA: where employe is the natural person to speak to the attorney or the employee did something and the Co. instructs her to speak to the attorney
    • CA Exception: "Mere Witness"
    • - no exception for witness that happens to be an employee
  32. Privileges - Attorney-client - additional general exception
    CA: where lawyer reasonably believes that disclosure of the communication is necessary to prevent crime that is likely to result in death of substantial bodily harm
  33. Privileges - Attorney-client - psychotherapy/doctor
    • CA addition: psychotherapist privilege does not apply where patient poses a threat to himself or others and disclosure is necessary to prevent
    • CA addition: Doctor-patient does not apply in criminal cases or to information doctor is required to report to public office (e.g. gun-shot wound)
  34. Privilege - spousal
    • CA: applies to BOTH civil and criminal (Fed only criminal)
    • CA: witness does not have to take the stand at all
  35. Additional CA privileges
    • Confidential communications between a counselor and victim of sexual assault or domestic violence
    • Penitential communication between penitent and clergy
    • Immunity from contempt of court for news reporter who refuses to disclose source
Card Set:
CAB CA evidence
2016-07-03 13:54:22
CAB CA evidence

CAB CA evidence
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