California Evidence Distinctions: CA Bar

STUDY
PLAY
I. When do you apply CA law?
a. Do not apply CA evidence law on the MBE where FRE applies

b. Apply CA law only on essay and only if the essay question directs you to do so.
i. Otherwise apply the FRE on the essay.
II. How different is CA and FRE?
a. Most of the CA evidence code CEC is similar, if not identical to the FRE.

b. An important difference in criminal cases is created by the CA Constitution
III. In a criminal case, mention the
a. "TRUTH IN EVIDENCE" amendment to CA Constitution (Prop 8).
i. This makes all relevant evidence

1) admissible
2) in a criminal case,
3) even if it is objectionable under the CEC.
Important Exceptions to Prop 8: (these objections are not overruled by Prop 8)
ii. The constitution overrules the CEC.

1) Important Exceptions to Prop 8: (these objections are not overruled by Prop 8)

a) Exclusionary rules under US Constitution such as the Confrontation Clause
b) Hearsay law

c) Privilege law

d) Limits on character evidence to prove the Ds conduct

e) Limits on character evidence to prove victims conduct

f) The secondary evidence rule (CA version of the Best Evidence Rule

g) CEC 352 (court's power to exclude if unfair prejudice substantially outweighs probative value.
THREE STEP APPROACH TO APPLY CA LAW ON ESSAY IF IT'S A CRIMINAL PROSECUTION
i. RAISE ALL OBJECTIONS POSSIBLE UNDER EVIDENCE CODE

ii. FOR EACH OBJECTIONS, MENTION IF PROP 9 OVERRULES THE OBJECTION

a) (IS THE EVIDENCE RELEVENT)

b) DO ONE OF THE EXCEPTIONS TO PROP 8 APPLY)?

iii. EVEN IF THE EVIDENCE SEEMS RELEVENT UNDER PROP 8, YOU CAN ALWAYS BALANCE UNFAIR PREJUDICE AGAINST PROBATIVE VALUE UNDER CEC 352
RELEVANCE

a. Defined: FRE and CEC:
Evidence is relevant
1) if it has any tendency to make the existence of any fact

2) that is of consequence to the determination of the action

3) more or less probable

4) than it would be without the evidence.

b. CA only: the fact of consequence must also be in dispute.
V. EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS
a. Subsequent remedial measures or repair

b. Settlements, offers to settle and related statements:

c. Payments or offers to pay medical expenses:

d. EXPRESSIONS OF SYMPATHY:

e. Pleas later withdrawn, offers to plea, and related statements.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS

Subsequent remedial measures or repairs:

FRE v. CA
i. FRE and CEC:
1) Evidence of safety measures or repairs
2) after an accident
3) is inadmissible to prove negligence

ii. FRE only:
1) Such evidence is also inadmissible
a) to prove defective design
b) in products liability action
c) based on theory of strict liability

d) No such rule in CA.
i) So in CA this would be admissible.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS

Settlements, offers to settle and related statements:

FRE v. CA
Settlements, offers to settle and related statements:

FRE and CEC/CA:
1) Evidence of
a) settlements,
b) offers to settle,
c) and related statements
i) are inadmissible
ii) to prove liability or fault.
ii. CA only:
1) Discussions during mediation proceedings are also inadmissible.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS

Payments or offers to pay medical expenses:

FRE and CA:
Payments or offers to pay medical expenses:

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

CA: inadmissible admissions of FACT made in the course of making such payments or offers

FRE: only excludes such statements if part of a settlement offer.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS

EXPRESSIONS OF SYMPATHY:
EXPRESSIONS OF SYMPATHY:

CA:
1) Makes inadmissible
a) in CIVIL actions
b) expressions of sympathy
c) relating to suffering or death of an accident victim.

2) But statements of fault
a) made in connection with such an expression
b) are not excluded.

FRE:

1) No comparable federal rule.
a) All would be admissible
b) if not a settlement offer
c) and not an offer to pay medical expenses.

No fed rule excludes any of this evidence.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY REASONS

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

i. FRE and CEC/CA:
Pleas later withdrawn, offers to plea, and related statements.

i. FRE and CEC/CA:
1) Inadmissible under both

CA Prop 8:
1) Law is unclear if this is admissible.
2) On an essay, raise the issue and mention that, even if Prop 8 applies to such evidence, the court may still exclude for unfair prejudice.
Character evidence in CIVIL cases.
Character evidence in CIVIL cases.

i. CHARACTER EVIDENCE is inadmissible to prove conduct:

ii. No CA exceptions

iii. One exception under FRE only:
1) Where claim is based on sexual assault or child molestation. In such a case, Ds PRIOR ACTS of sexual assault or child molestation
are admissible to prove Ds CONDUCT in this case. This is inadmissible under CA law. Weird.
Character evidence in a CRIMINAL case:

i. Two major issues:
Is character evidence admissible to prove

a) conduct of D?

b) Of the victim?
Character evidence in a CRIMINAL case:

Admissibility of evidence of Ds character to prove Ds conduct:

FRE / CA
FRE and CA:
a) Prosecution cannot be the first to offer such evidence.
b) Usually the prosecution my only rebut after the D opens the door by offering character evidence

CA: Prop 8
i) Does not change this rule in CA
Character evidence in a CRIMINAL case:

Admissibility of evidence of Ds character to prove Ds conduct:


EXCEPTIONS
a) where prosecution my be first to offer evidence of Ds character to prove Ds conduct:
FRE and CA: In cases of sexual assault or child molestation, prosecution may offer evidence that D committed other acts of sexual assault or child molestation.

FRE only: Where court has admitted evidence of victim's character offered by accused, prosecution may offer evidence that accused has the SAME CHARACTER TRAIT.

CA only:
1) In prosecution for crime of DOMESTIC VIOLENCE, prosecution may offer evidence that D committed other acts of DV

2) Where court has admitted evidence of victim's character for VIOLENCE offered by accused, prosecution may offer evidence that accused has VIOLENT character ( a narrower version of 2).
Character evidence in a CRIMINAL case:

ISSUE: When does evidence of victim's character open door to evidence of Ds character?

FRE / CA
Door to ds character and door to vs character.

Normally these doors are opened separately.

Exception under FRE:
a) if D offers evidence V has a particular character trait, that opens Ds character door, allowing prosecution to show D has that same trait.
1. FRE is broader.

CA:
a) has a narrower version of this rule: if D offers evidence V has character for violence, that opens the door for prosecution to show D has violent character trait
1. CA is narrower bc limited to violence.
Character evidence in a CRIMINAL case:

ISSUE2: what method can you prove character by?

1) On direct examination,
a) reputation
b) and opinion are OK,
c) but not specific instances.
Character evidence in a CRIMINAL case:

ISSUE2: what method can you prove character by?

2) On cross examinations,
a) FRE:
i) all
ii) are admissible under FRE.

b) CEC/CA:
i) admits only REPUTATION and OPINION to prove Ds character, whether on direct or cross.

SPECIFIC INSTANCES ARE NEVER ALLOWED IN CA.
Admissibility of evidence of victim's character to prove his conduct.

FRE / CA
FRE and CA:
1) Most of the same rules apply
2) Prosecution cannot be first to offer character to prove conduct of the VICTIM.
3) CA: Prop 8 does not change this rule in CA

FRE exception:
1) In a homicide case
a) the prosecution can be first to offer evidence
b) that v had peaceful character
i) if D offers evidence
ii) v attached first.
c) No such rule in CA.

FRE and CA:
1) D can be the first to offer character of victim
a) to prove conduct,
b) then prosecution may rebut.
Admissibility of evidence of victim's character to prove his conduct.

METHOD OF PROVING CHARACTER:

FRE / CA
FRE:
a) Reputation and opinion evidence
b) admissible:
c) no specific instances
i) on direct,
ii) but OK on cross.

CA:
a) Reputation,
b) opinion,
c) and specific instances
d) permitted on both
i) direct
ii) and cross.
RAPE SHEILD STATUTE:

FRE / CA
i. Limits defense evidence of alleged victim's character when offered to support defense of consent.

ii. CEC is similar to FRE:

iii. CA: PROP 8 does not apply to evidence barred by this rule.
TESTIMONIAL EVIDENCE:

WITNESS COMPETENCY
FRE and CEC:
1) Require witnesses testify based on personal knowledge,

2) have the ability to communicate,

3) take an oath or make an affirmation to tell the truth and

4) claim to recall what they perceived.

CA:

1) Witness must also understand legal duty to tell the truth

FRE and CEC

1) All witnesses are competent except for judge and jurors.

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

EXPERT OPINION:
FRE and CEC:

1) 5 requirements for admissibility: opinion must be
i) Helpful to the jury
ii) Witness must be qualified
iii) Witness must believe in opinion to reasonable degree of certainty
iv) Opinion must be supported by proper factual basis
v) Opinion must be based on reliable principles reliably applied to the facts.
TESTIMONIAL EVIDENCE:

FRE and CEC differ on application of the last requirement to scientific opinions.
FRE:
a) Daubert / Kumho Standard: Reliability of scientific opinions determined by four factors
1. Publication / peer review
2. Error rate
3. Results are tested and there is ability to retest
4. And reasonable level of acceptance

ii) As to non scientific opinions, reliability determined ad hoc looking at facts and circumstances of the case.

CA/CEC:
a) Kelly Frye General acceptance standard:
i) Reliability of scientific opinions determined by ONE FACTOR:
1. The opinion must be based on principles generally accepted by experts in the field.

This standard is not altered by PROP 8 because it is a standard of relevance. (remember prop * only makes evidence admissible if it s relevant). Kelly / frye inapplicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.
LEARNED TREATISE HEARSAY EXCEPTION:

FRE / CA
FRE: Admissible to prove anything if treatise is accepted authority in field

CA: LT only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.
EVIDENCE OF WITNESS CREDIBILITY: IMPEACHMENT:

Impeachment
i. by prior inconsistent statement
ii. of witness
iii. who is now testifying at trial:
FRE and CEC/CA:
a) A prior inconsistent stmt of a witness
b) is not HEARSAY
c) if offered only to impeach,

i) bc then its not being offered to prove the truth of the facts asserted.

ii) It would be inadmissible to prove the truth of the matter asserted/ INADMISSIBLE HEARSAY.

FRE:
a) If the prior inconsistent stmt of our now in court witness
i) was given under oath
ii) at trial or deposition,
iii) also not HEARSAY

b) even if offered to prove truth of facts asserted, (exemption) otherwise it would be HEARSAY and inadmissible to prove the truth of the facts asserted.

CEC:
a) Prior inconsistent stmt would be HEARSAY
b) if offered to prove truth of facts asserted
c) But is admissible
d) under exception,
i) which extends to all inconsistent statements of witness,
ii) whether or not under oath.

c) This is a very broad exception. PIS of a witness are admissible hearsay, doesn't matter if its under oath or not. Ok to admit to prove the truth of the matter asserted.
Impeachment with PRIOR FELONY CONVICTION:

FRE:
Impeachment with PRIOR FELONY CONVICTION:

FRE:
a) All felonies involving false statement
i) Perjury, forgery, fraud
ii) Are admissible.
iii) No balancing of unfair prejudice against probative value except for old convictions.

b) Convictions for felonies
i) not involving false statement
ii) may be admissible
iii) but court must balance unfair prejudice against probative value.
Impeachment with PRIOR FELONY CONVICTION:

CA:
CA:
a) All felonies involving
i) "moral turpitude"
ii) are admissible
iii) to impeach
iv) but court must balance unfair prejudice against probative value;

b) Felonies
i) not involving moral turpitude
ii) are inadmissible
iii) in CA to impeach.

Prop 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.
Impeachment with prior misdemeanor convictions:

FRE / CA
FRE:
a) All misdemeanors
b) involving false statement
c) are admissible
d) To impeach
e) Again there is no balancing of unfair prejudice against probative value except for old convictions

f) All other misdemeanor convictions
i) are inadmissible
ii) to impeach

CA
a) CA/CEC misdemeanor convictions
b) inadmissible
c) to impeach.

d) But because of Prop 8 misdemeanors
i) CAN be admitted
ii) in a criminal case
iii) in involving a crime of moral turpitude:
-Lying
-Violence
-Theft
-Extreme recklessness
-Sexual misconduct
e) Subject to balancing probative value v. unfair prejudice.

f) This means
i) misdemeanors
ii) are inadmissible in CA
iii) to impeach
iv) in a CIVIL case.
*If the conviction is otherwise admissible under the above rules (misdemeanor or felony),
a) extrinsic evidence
i) can be used under
ii) FRE and CA law
iii) to prove the conviction.

2) 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),

i) it is inadmissible under FRE/Federal law
ii) unless
iii) probative value outweighs prejudice. No such specific rule in CA for old convictions.
But under the above rules CA courts may balance, which permits consideration of any factor bearing on probative value, including age of conviction. The older the conviction the less its probative value allows to prove a conviction for impeachment purposes using EE / piece of paper.

Look for crime of all relevant to impeach/ prop 8 /moral turpitude and balancing.
IMPEACHMENT WITH NON-Conviction misconduct bearing on truthfulness.
FRE:
a) Admissible
b) in civil and criminal cases,
c) subject to balancing;
d) must be act of lying;
e) EE inadmissible
i) but may ask witness about her misconduct on cross

CA:
a) Inadmissible under CEC
b) but Prop 8
i) makes it admissible
ii) in criminal cases
iii) if relevant;
iv) to be relevant the misconduct must be an act of moral turpitude
-Lying
-Violence
-Theft
-Extreme recklessness
-Sexual misconduct

v) Both cross examination and EE permitted, subject to balancing.
HEARSAY:

CA: hearsay: Truth in evidence
CA:
Hearsay law is exempt from coverage of TRUTH IN EVIDENCE Amendment to CA Constitution Prop 8. This means that even in a criminal case, the usual rules of evidence apply.
Hearsay: CA: Exceptions / Exemptions
Exceptions / Exemptions to the Hearsay Rule.
a) While FRE has both exemptions to the hearsay definition and exceptions to the rule, CA only has EXCEPTIONS
FRE Exemptions are exceptions under CA law

i) Admission of party opponent:
FRE and CA Admission = stmt by party or someone whose statement is attributable to a party, offered by a party opponent

FRE: exemption to usual hearsay def and thus not hearsay under FRE rules

CA: hearsay but admissible under exception
FRE Exemptions are exceptions under CA law

ii) Vicarious party admissions:


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

FRE:
Statement by employee of party is party admission of employer if statement concerned matter within scope of employment and made during employment relationship. THEN STMT IS NOT HEARSAY AND WILL BE ADMISSIBLE

CA:
Statement by employee of party
1. is party admission of employer
2. only where negligent conduct of that employee is the basis for employer's liability in the case under respondeat superior.

In other words, employer is responsible in tort law for employee's words only if also responsible because of that employee's conduct.
FRE Exemptions are exceptions under CA law

PRIOR INCONSISTENT STATEMENTS OF WITNESS
PRIOR INCONSISTENT STATEMENTS OF WITNESS

FRE and CA:
a) PIS not hearsay
b) if offered just to impeach

FRE
a) If PIS given under oath, exemption to usual hearsay definition and not hearsay even if offered to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.

CA
a) PIS of a witness are always hearsay
b) if offered to prove truth of facts asserted
c) but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath
Hearsay:

FRE Exemptions are exceptions under CA law

PRIOR CONSISTENT STMT OF WITINESS NOT TESTIFYING AT TRIAL:
Admissible under both FRE and CA if PCS made before bribe or inconsistent stmt.

Not hearsay under FRE exemption to hearsay definition; hearsay but within exception under CEC.
Hearsay:

FRE Exemptions are exceptions under CA law
Declaration against interest exception.

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

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

CA:
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.
FRE and CA:

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

FRE only:
1. Declarant refuses to testify despite court order
2. Declarant's memory fails on the subject of her statement.

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

FORMER TESTIMONY EXCEPTION:
Testimony given in earlier proceeding or deposition by a witness now unavailable is admissible in current proceeding if:

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

OR
FRE only
1. In a CIVIL case,
2. party against whom testimony is now offered
3. was not a party in the earlier proceeding
4. but is in a privity-type relationship with someone who was a party to that earlier proceeding (a predecessor in interest) 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

OR
CA only:
1. In a CIVIL case,
2. party against whom testimony is now offered
3. was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to exam the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered

OR
CA only:
1. the former testimony is offered today
2. against the person who offered it in evidence in her own behalf in the earlier proceeding or against a successor in interest

RELATED CA LAW:
1. deposition testimony
2. given in the same CIVIL action in which hearsay is offered at trial
3. is admissible for all purposes
4. 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.
DYING DECLARATION EXCEPTION;

FRE / CA
FRE:
Declaration by person who believes he is about to die and describes causes / circumstances leading to his death is admissible in a CIVIL action and in a homicide prosecution
-if declarant unavailable.
-Declarant need not die

CA:
Exception applies in all CIVIL and CRIMINAL cases and declarant must be DEAD.
PRESENT SENSE IMPRESSION EXCEPTION:

FRE / CA
No need to show declarant unavailable.

FRE
1. A statement
2. describing or explaining an event or condition
3. made while
4. declarant was perceiving the event or condition or immediately thereafter

CA
Exception is narrower
1. A statement
2. explaining conduct
3. of the declarant: ONLY THE CONDUCT OF THE DECLARANT IS ADMISSIBLE.
4. made while
5. the declareant was engaged in that conduct.
RELATED CALIFORNIA EXCEPTION:

No FRE COUNTERPART

CA
A statement describing infliction or threat of physical abuse.
1. Watch out for confrontation issue?

ELEMENTS:
1. Statement made
2. at or near time of injury or threat
3. by unavailable declarant,
4. describing or explaining infliction or threat,
5. in writing or recorded or made to police or medical professional
6. under trustworthy circumstances.
7. All of this is admissible hearsay.

CONFRONTATION CLAUSE ISSUE: Stmts to police cant be testimonial.
EXCITED UTTERANCE EXCEPTION:
FRE and CA:
Statements relating to startling event or condition are admissible when made while
1. declarant was still under stress of excitement
2. caused by
3. event or condition.

No need to show declarant unavailable.
EXCEPTION FOR DECLARATION OF THEN EXISTING PHYSICAL OR MENTAL CONDITION:
FRE and CA:
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.
1. But a statement describing a memory or belief
2. is not admissible
3. to prove the fact remembered or believed.
EXCEPTION FOR STATEMENT OF PAST OR PRESENT MENTAL OR PHYSICAL CONDITON MADE FOR DIAGNOSIS OR TREATMENT:
No need to show declarant unavailable

FRE:
A statement describing past or present mental or physical condition of the declarant or another person is admissible
if made for and while pertinent to medial 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,
1. but only if the delcarant
2. is a minor
3. describing an act of child abuse or neglect.

RELATED CA EXCEPTION:
-NO FRE COUNTERPART:

-ELEMENTS
1. A statement of declarant's
2. past physical or mental condition, including a statement of intention
3. is admissible
4. to prove that condition
5. if it is an issue in this case -

* no requirement that statement be made for medial purposes.

* Declarant must be unavailable.
BUSINESS RECORDS EXCEPTION:
No need to show declarant unavailable

FRE:
Record of
1. events,
2. conditions,
3. opinions
4. or diagnoses
5. 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.
6. Court may exclude if untrustworthy.

CA:
Exception does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses:
ELEMENTS:
1. A record of events or conditions
2. kept in course of regularly conducted business activity
3. is admissible
1. if made at or near time of matters described,
2. by a person with knowledge of the facts in that record
3. and record is trustworthy.
PUBLIC RECORDS EXCEPTION:
No need to show declarant unavailable

FRE:
The record of a public office is admissible
if it within ONE of the following categories
1. The record describes the activities or policies of the office
2. The record describes matters observed pursuant to duty imposed by law (but not police reports in criminal case)
3. The record contains factual findings resulting from an investigation made pursuant to authority granted by law, unless untrustworthy. In a criminal case prosection cannot use number 3.


CA:
California does not place same restrictions on prosecution:

ELEMENTS
1. Record made by a public employee
2. is admissible
3. if making record was within scope of her duties,
4. record was made at or near the time of the matters described,
5. and circumstances indicate trustworthiness.
EXCEPTION FOR JUDGMENT OF CONVICTION:
No need to show declarant unavailable

FRE:
a felony conviction is admissible in both CIVIL and CRIMINAL cases to prove any fact essential to the judgment,
1. but when offered by prosecution
2. for purposes other than impeachment,
3. judgments against persons other than the accused are inadmissible

CA:
The specific exception for convictions applies only in CIVIL cases
1. Prop 8 does not change this hearsay law.
2. But Prop 8 permits the prosecutor or defendant in a criminal case to impeach a witness using a criminal conviction
1. (felony or misdemeanor)
2. 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 case.
WRITINGS AND OTHER PHYSICAL EVIDENCE:

AUTHENTICATION:


ANCIENT DOCUMENTS:
ANCIENT DOCUMENTS:

1) If document is

2) FRE 20 / CA 30 years old or more,

3) does not on its face present irregularities (erasesures)

4) and was found in a place of natural custody

5) authenticity is established.
WRITINGS AND OTHER PHYSICAL EVIDENCE:

AUTHENTICATION:

Self- authenticating writings:
1) for certain writings, authentication is unnecessary. These include

a) Certified copies of documents / deeds
b) Acknowledged documents
c) Official publications
d) Newspapers
e) Periodicals
f) Business records: federal only
g) And trade inscriptions (federal only)
Best Evidence Rule / Secondary evidence

Rule in CA:

AUTHENTICATION:

WRITINGS AND OTHER PHYSICAL EVIDENCE:
Best Evidence Rule / Secondary evidence

Rule in CA:
1) Exempt from Prop 8 in CA.
a) This means that even in a criminal case, the Secondary evidence Rule applies.

2) This rule applies only where evidence is offered to prove the CONTENTS of a writing

3) (defined to include any tangible collection of data.

4) The rule requires proof of contents with original, but with many exceptions
WRITINGS AND OTHER PHYSICAL EVIDENCE:

AUTHENTICATION:

Best Evidence Rule / Secondary evidence Rule in CA:

ISSUE: Other than the original, what tangible evidence is admissible to prove contents of a writing?
FRE:
i) Duplicates usually also admissible.

ii) Duplicate = a copy of original produced by same impression that produced the original (carbon copy or by machine: photocopier, camera).

iii) Handwritten copy is not a duplicate.

CA
i) Admits duplicates and other written evidence of contents of original, such as handwritten notes.
When is testimony admissible to prove contents of a writing?
FRE and CA:

Testimony regarding contents of writing may be admissible whether original lost or destroyed, unless bad faith by proponent of testimony.
PRIVILEGES:
CA:
Most privilege law is exempt from coverage of TRUTH in EVIDENCE Amendment to CA Constitution. This means that, even in a criminal case, the usual rules of privileges apply.

FRE:
i) in a CIVIL suit
ii) brought in federal court
iii) under diversity jurisdiction,
iv) state privilege law applies.
Attorney - Client Privilege:
FRE and CA:

1) A communication

2) between attorney and client or their representatives

3) intended by client to be confidential

4) and made to facilitate rendition of professional legal services

5) is privileged unless waived by the client
ISSUE: When is a communication from a corporation employee to corporation's attorney privileged?
FRE:
a) Privilege applies to communications from employees/agents

b) if they were authorized by the corporation

c) to make the communication to the lawyer

d) on behalf of the corporation.

CA:

a) privilege applies to communications from the employee/ agent
b) if she is the natural person to speak to the lawyer
c) on behalf of the corporation in the matter (the corporation's in house counsel or CEO),

or
ii) employee/ agent did something for which the corporation may be held liable,
iii) and the corporation instructed her to tell its lawyer what happened.

*As applied, there is no significant difference in the scope of these standards.

NO PRIVILEGE FOR MERE WITNESS WHO HAPPENS TO BE AN EMPLOYEE.
Attorney - Client Privilege:

EXCEPTIONS:
FRE and CA:

i) Privilege does not apply where professional services were sought to further CRIME OR FRAUD
or
ii) two or more parties
1. consult an attorney on a matter of common interest and the communication is offered by one of these parties against the other
or
iii) Communication relates to alleged breach of duty between lawyer and client

CA only:
i) 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
c. Doctor-Patient and Psychotherapist patient privileges:

FRE / CA
FRE:
1) There is a psychotherapist-patient privilege

2) But no dr-patient privilege. (but remember, sometimes MBE questions assumes existence of Dr-patient privilege.

CA:
1) Both privileges exist.
c. Doctor-Patient and Psychotherapist patient privileges:

EXCEPTIONS:
FRE and CA exceptions for both privileges:

a) Where the patient puts is physical or mental condition in issue, as in a personal injury suit

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

c) In case alleging breach of duty between patient and dr or psychotherapist as in a malpractice action

CA only:

a) 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

b) Dr-patient privilege does not apply in criminal cases or to information that dr is required to report to a public office
i) gun shot wounds and some communicable diseases).
SPOUSAL PRIVILGES:
i. Spousal testimonial privilege:

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

FRE:
a) Applies only in criminal cases

CA:
a) Applies in CIVIL and CRIMINAL CASES
b) and spouse of party is privileged not even to be called to witness stand


ii) FRE and CA: Spousal confidential communication privilege

1) may apply in any case and protects confidential spousal communications during marriage.
OTHER CA PRIVILGES:
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
JUDICIAL NOTICE:

Procedure for taking Judicial Notice:
Party must request judicial notice to compel judicial notice and if not requested court has discretion to take judicial notice.

CA Exception:
1) whether requested or not court must take judicial notice of matters generally known within jurisdiction

FRE:
1) In a civil case, court instructs jury that it must accept judicially noticed fact

2) In criminal case, court instructs jury it may accept judicially noticed fact, but not required to do so

CA
a) Court instructs jury that it must accept judicially noticed fact in
i) both civil and criminal cases.
YOU MIGHT ALSO LIKE...