FRE CALIFORNIA DISTINCTIONS

**if there is no difference below, then assume the law is the same; most of CEC is similar if not identical;

CALIFORNIA
truth in evidence amendment in criminal case, all relevant evidence admissible even if it might be objectionable; exceptions: (1) exclusionary rules under US Const., i.e. confrontation clause; (2) hearsay law; (3) privilege law; (4) limits on character evidence about victim in rape case; (5) rule prohibiting prosecution from offering evidence of s character before opens door; (6) secondary evidence rule, i.e. best evidence rule; (7) CEC 352, i.e. exclusion if unfair prejudice substantially outweighs probative value; relevance relevant if it has any tendency to make existence of any fact that is of consequence to determination of action more or less probable that it would be without evidence; distinction fact of consequence must also be in dispute; subsequent remedial measures or repairs evidence of safety measures or repairs after an accident is inadmissible to prove negligence; distinction admissible where safety measure or repairs after accident to prove defective design in products liability action based on theory of strict liability; settlements, offers to settle and related statements evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault; distinction inadmissible discussions during mediation proceedings; payment or offers to pay medical expenses evidence of payments or offers to pay medical expenses inadmissible when offered to prove liability for injuries in question; distinction inadmissible admissions of fact made in course of making such payments or offers; expressions of sympathy inadmissible in civil actions expressions of sympathy relating to suffering or death of accident victim; statements of fault made in connection with such an expression admissible; pleas later withdrawn, offers to plea, and related statements inadmissible; - law is unclear whether Prop. 8 makes admissible; (1) raise issue, (2) mention unclear, (3) even if Prop. 8 applies, court still may exclude for unfair prejudice; character evidence in civil case, inadmissible to prove conduct; distinction no exceptions; character evidence (s character to show s conduct) in criminal case, only can open doors for state; state may only rebut after opens door by offering character evidence; distinction Prop 8 does not open character doors; exceptions: - in cases of sexual assault or child molestation, state may offer evidence that committed other acts of sexual assault or child molestation; - in crime of DV, state may offer evidence that committed other acts of DV; - where court has admitted evidence of victims character for

FRE

relevance relevant if it has any tendency to make existence of any fact that is of consequence to determination of action more or less probable that it would be without evidence; distinction balance if whether a waste of time; subsequent remedial measures or repairs evidence of safety measures or repairs after an accident is inadmissible to prove negligence; distinction inadmissible also to prove defective design in products liability action based on theory of strict liability; settlements, offers to settle and related statements evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault; payment or offers to pay medical expenses evidence of payments or offers to pay medical expenses inadmissible when offered to prove liability for injuries in question; distinction only excludes statements if part of settlement offer; - no comparable rule;

pleas later withdrawn, offers to plea, and related statements inadmissible;

character evidence in civil case, inadmissible to prove conduct; distinction where claim is based on sexual assault or child molestation, s prior acts of sexual assault or child molestation admissible to prove s conduct in case; character evidence (s character to show s conduct) in criminal case, only can open doors for US; US may only rebut after opens door by offering character evidence; exceptions: - in cases of sexual assault or child molestation, prosecution may offer evidence that committed other acts of sexual assault or child molestation; - where court has admitted evidence of victims character offered by , US may offer evidence that has same character trait; type of evidence on direct exam, reputation and opinion are OK but no specific instances; on cross exam all are admissible;

violence offered by , state may offer evidence that has violent character (narrower than FRE); type of evidence CEC admits only reputation and opinion to prove s character whether on direct or cross; but Prop. 8 makes it all admissible subject to 352 balancing; character evidence (victims character to prove victims conduct) state cannot be first to offer character to prove conduct, i.e. door closed (CEC); exception: Prop. 8, i.e. if evidence of victims character is relevant, admissible subject to 352 balancing; - reputation, opinion, specific instances permitted on both direct and cross; rape shield statute limits s evidence of alleged victims character when offered to support defense of consent; - Prop. 8 does not apply; competency witnesses must testify based on PK, have ability to communicate, take an oath or make an affirmation to tell truth, and claim to recall what they perceived; distinction witness must also understand legal duty to tell the truth; disqualification all witnesses are competent except for judge or jurors; distinction disqualifies witnesses who have been hypnotized to help refresh recollection except in criminal case witness hypnotized by police using procedures that protect against suggestion; expert opinion must be (1) helpful to jury, (2) qualified, (3) witness must believe in opinion to reasonable degree of certainty, (4) opinion supported by proper factual basis, and (5) opinion must be based on reliable principles reliably applied to facts; Kelley/Frye reliability determined by (1) opinion must be based on principles generally accepted by experts in field; - Prop. 8 has no effect; - inapplicable to nonscientific opinions and medical opinions; based on facts and circumstances of case; learned treatise hearsay exception only admissible to show matters of general notoriety or interest, i.e. very narrow and almost never applicable; impeachment by PIS of witness now testifying at trial not hearsay if offered only to impeach; - 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; impeachment with prior felony conviction all felonies involving moral turpitude admissible but court must balance; felonies not involving moral turpitude inadmissible; - Prop. 8 does not make such felonies admissible because convictions must involve crime of moral turpitude to be relevant; moral turpitude = crimes of lying, violence, theft, extreme recklessness, sexual misconduct; but not crimes merely negligent or unintentional acts; impeachment with prior misdemeanors in civil case, misdemeanors inadmissible to impeach; - Prop. 8 = in criminal case, admissible if involving crime of moral turpitude; subject to balancing probative value v. unfair prejudice; conviction evidence (misdemeanors and felonies) - if conviction is otherwise admissible, extrinsic evidence OK; - no limitation on old convictions; courts may balance which permits consideration of any factor bearing on probative value, including age of conviction; non-conviction misconduct bearing on truthfulness - in civil case, inadmissible under CEC;

character evidence (victims character to prove victims conduct) state cannot be first to offer character to prove conduct, i.e. door closed; exception homicide case, US can be first to offer evidence that victim had peaceful character if offers evidence that victim attacked first; - reputation and opinion evidence admissible; no specific instances on direct but OK on cross; rape shield statute limits s evidence of alleged victims character when offered to support defense of consent; competency witnesses must testify based on PK, have ability to communicate, take an oath or make an affirmation to tell truth, and claim to recall what they perceived; disqualification all witnesses are competent except for judge or jurors;

expert opinion must be (1) helpful to jury, (2) qualified, (3) witness must believe in opinion to reasonable degree of certainty, (4) opinion supported by proper factual basis, and (5) opinion must be based on reliable principles reliably applied to facts; Daubert/Kumho reliability determined by (1) publication/peer review, (2) error rate, (3) results are tested and ability to retest, (4) reasonable level of acceptance; (5) non-scientific opinions determined ad hoc looking at facts and circumstances of cases; learned treatise hearsay exception admissible to prove anything if treatise is accepted authority in field; impeachment by PIS of witness now testifying at trial not hearsay if offered only to impeach; - if PIS given under oath at trial or deposition, also not hearsay to prove truth of facts asserted; otherwise hearsay and inadmissible to prove those facts; impeachment with prior felony conviction all felonies involving false statement are admissible, no balancing of unfair prejudice against probative value except for old convictions; convictions for felonies not involving false statement may be admissible but court must balance;

impeachment with prior misdemeanors all misdemeanors involving false statement admissible; no balancing of unfair prejudice against probative value except for old convictions; all other misdemeanors inadmissible to impeach; conviction evidence (misdemeanors and felonies) - if conviction is otherwise admissible, extrinsic evidence OK; - if conviction is otherwise admissible, but it is more than 10 years since conviction or release from prison (whichever later), inadmissible unless probative value outweighs prejudice; non-conviction misconduct bearing on truthfulness - admissible in civil and criminal cases, subject to balancing;

- in criminal case, admissible under Prop. 8 if relevant; - relevancy requires misconduct be act of moral turpitude; - both cross-exam and extrinsic evidence permitted subject to balancing; hearsay hearsay law exempt from Prop. 8; FRE applies even in a criminal case; - only exceptions (hearsay but admissible); admission of party opponent admission is statement by party, or someone whose statement is attributable to party, offered by party opponent; - hearsay but admissible under exception; vicarious party admission statement of authorized spokesperson for party treated as admission of that party; - statement by employee of party is party admission of employer only where negligent conduct of that employee is basis for employers liability in case under respondeat superior, i.e. responsible for words only if responsible for conduct; PIS of witness PIS not hearsay if offered to impeach; exception: 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; PCS of witness now testifying admissible if made before bribe or inconsistent statement; hearsay but within exception under CEC; declaration of interest statement by unavailable declarant admissible if, at time it was made, it was against financial interest of declarant or would have subjected declarant to criminal liability; - also includes statement against social interest because it risks making declarant an object of hatred, ridicule, social disgrace in community; declarant unavailable court exempts declarant from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarants attendance by process or other reasonable means; - if declarant suffers total memory loss or refuses to testify out of fear; former testimony exception testimony given in earlier proceeding or depo by witness now unavailable is admissible in current proceeding if: (1) party against whom testimony is now offered was party in earlier proceeding had opportunity to examine witness, and its motive to conduct that exam was similar to motive it has now; (2) in civil case, party against whom testimony is now offered was not a party in earlier proceeding but party in that earlier proceeding had opportunity to examine witness and interest to conduct that exam similar to interests of party against whom testimony is now offered; (3) former testimony is offered against person who offered it in evidence in her own behalf in earlier proceeding, or against successor in interest of such person; (4) deposition testimony given in same civil action in which hearsay is offered at trial is admissible for all purposes if deponent is unavailable at trial or lives more than 150 miles from courthouse; otherwise, former testimony exception does not apply to depo testimony given in same case in which hearsay is offered at trial; dying declaration declaration by person who believes he is about to die and describes cause/circumstances leading to death admissible in civil action and homicide prosecution if declarant unavailable; - exception in all civil and criminal cases; - declarant must be dead; present sense impression no need to show declarant unavailable; statement explaining conduct of declarant made while declarant was

- must be act of lying, i.e. false statement; - extrinsic evidence inadmissible but may ask witness about misconduct on cross; hearsay general FRE rules apply; - exemptions (non-hearsay) and exceptions (hearsay but admissible) to hearsay rule; admission of party opponent admission is statement by party, or someone whose statement is attributable to party, offered by party opponent; - exemption to usually hearsay definition, i.e. (non-hearsay); vicarious party admission statement of authorized spokesperson for party treated as admission of that party; - statement by employee of party is party admission of employer if statement concerned matter within scope of employment and made during employment relationship; PIS of witness PIS not hearsay if offered just to impeach; exception: PIS is given under oath, then exemption, i.e. not hearsay even if offered to prove truth of facts asserted; otherwise hearsay and inadmissible to prove those facts; PCS of witness now testifying admissible if made before bribe or inconsistent statement; declaration of interest statement by unavailable declarant admissible if, at time it was made, it was against financial interest of declarant or would have subjected declarant to criminal liability; - in criminal case, evidence offered to exculpate , must offer corroborating circumstances showing declarants statement is trustworthy; declarant unavailable court exempts declarant from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarants attendance by process or other reasonable means; - declarant refuses to testify despite court order; - declarants memory fails on subject of her statement; former testimony exception testimony given in earlier proceeding or depo by witness now unavailable is admissible in current proceeding if: (1) party against whom testimony is now offered was party in earlier proceeding had opportunity to examine witness, and its motive to conduct that exam was similar to motive it has now; (2) predecessor in interest in civil case, party against whom testimony is now offered was not party in earlier proceeding but is in privity-type relationship with someone who was party to that earlier proceeding and who had opportunity and interest to conduct exam similar to interest of party against whom testimony is now offered;

dying declaration declaration by person who believes he is about to die and describes cause/circumstances leading to death admissible in civil action and homicide prosecution if declarant unavailable; declarant need not die; present sense impression no need to show declarant unavailable; statement describing or explaining an event or condition made while

engaged in that conduct; OJ exception 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; **check for confrontation; excited utterance same declaration of then existing physical or mental condition same statement of past or present mental or physical condition made for diagnosis or treatment no need to show declarant unavailalble; admissible only if declarant is a minor describing an act of child abuse or neglect; statement of declarants past physical or mental condition including statement of intention admissible to prove that condition if it is an issue in case; no requirement that statement be made for medical purpose; declarant must be unavailable; business exception - does not refer to opinions or diagnoses but courts still admit simple opinions or diagnoses; - record of events or conditions kept in court of regularly conducted business activity admissible if made at or near time of matters described, by a person with knowledge of facts in that record; record is trustworth; public records exception - no need to show declarant unavailable; - no restriction on state prosecutors; **watch for confrontation issue; - admissible if (1) made by public employee, (2) making record is within scope of duties, (3) record made at or near time of matters described, and (4) circumstances indicate trustworthiness; exception for judgment of conviction - no need to show declarant unavailable; - specific exception for convictions applies only in civil cases; - Prop. 8 allows state or in criminal case to impeach witness using criminal conviction (felony or misdemeanor) if it involves moral turpitude; - certified copy of judgment of conviction admissible under public records exception in both civil and criminal; ancient documents if document is 30 years old or more, does not on its face present irregularities, and was found in place of natural custody, authenticity established; self authenticating writings authentication unnecessary for certified copies of public documents, acknowledgement documents (notary), official publications, newspapers, periodicals Secondary Evidence rule - applies where evidence offered to prove contents of writing; - exempt from Prop. 8; even in criminal case, rule applies; - duplicates admissible and other written evidence of contents of original, i.e. handwritten notes; - testimony re contents of writing may be admissible where original lost or destroyed unless bad faith by proponent of testimony; privilege law - exempt from Prop. 8; even in criminal case, usual rules apply; attorney client privilege communication between attorney and client or their representatives intended by client to be confidential and made to facilitate rendition of professional legal services privileged unless waived by client; communication from corporation employee to corporation attorney

declarant was perceiving event or condition immediately thereafter; - no federal counterpart;

excited utterance same declaration of then existing physical or mental condition same statement of past or present mental or physical condition made for diagnosis or treatment no need to show declarant unavailalble; admissible if made for and pertinent to medical diagnosis or treatment; - no federal counterpart;

business exception - no need to show declarant unavailable; - record of events, conditions, opinion, or diagnoses kept in court of regularly conducted business activity admissible if made at or near time of matters described by person with knowledge of facts and regular practice of business to make such record; court may exclude if untrustworthy; public records exception - no need to show declarant unavailable; - admissible if within one of the following categories: (1) record describes activities of office, (2) record describes matters observed per duty imposed by law, (3) record contains factual findings resulting from investigation made per authority granted by law, unless untrustworthy; - in criminal case, US cannot use (2) or (3); exception for judgment of conviction - no need to show declarant unavailable; - felony conviction admissible in both civil and criminal cases to prove any fact essential to judgment but when offered by US for purposes other than impeachment, judgments against persons other than are inadmissible; ancient documents if document is 20 years old or more, does not on its face present irregularities, and was found in place of natural custody, authenticity established; self authenticating writings authentication unnecessary for certified copies of public documents, acknowledgement documents (notary), official publications, newspapers, periodicals, business records, and trade inscriptions; Best Evidence rule - applies where evidence offered to prove contents of writing; - duplicates usually also admissible; i.e. copy of original produced by same impression that produced original, e.g. carbon copy, photocopier, camera; - handwritten copy is not duplicate; - testimony re contents of writing may be admissible where original lost or destroyed unless bad faith by proponent of testimony; privilege law - civil suit brought in federal court under diversity jurisdiction, state privilege law applies; attorney client privilege communication between attorney and client or their representatives intended by client to be confidential and made to facilitate rendition of professional legal services privileged unless waived by client; communication from corporation employee to corporation attorney

privilege applies to communications from employee/agent if she is natural person to speak to the lawyer on behalf of corporation in matter or employee/agent did something for which corporation may be held liable and corporation instructed her to tell its lawyer what happened; (not much difference) exceptions: does not apply where (1) professional services were sought to further crime or fraud or (2) two or more parties consult attorney on matter of common interest and communication is offered by other these parties against another or (3) communication relates to alleged breach of duty between lawyer and client; also (4) where lawyer reasonably believe disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm; doctor-patient & psychotherapist-patient privileges - both privileges exist; exceptions: (1) where patient puts his physical or mental condition in issue, e.g. personal injury suit, (2) where professional services were sought to aid in crime or fraud or to escape capture after crime or tort, (3) in case alleging breach of duty between patient and doctor or psychotherapist, e.g. medmal; also (4) psychotherapist has reasonable cause to believe that patient is danger to himself or others, and disclosure is necessary to end danger; (5) in criminal cases, (6) information that doctor is required to report to public office, e.g. gun-shot wounds, communicable diseases; spousal privilege - testimony privilege permits witness to refuse to testify against spouse as to anything; - applies in civil and criminal cases; - spouse of party is privileged not even to be called to witness stand; spousal confidential communication - privilege may apply in any case and protects confidential spousal communications during marriage; Other Privileges - privilege for confidential communications between counselor and victim of sexual assault or DV; - privilege for penitential communications between penitent and clergy; - immunity from contempt of court for news reporter who refuses to disclose sources; judicial notice procedure for taking judicial notice; - whether or not party has requested judicial notice, court must take judicial notice of matters generally known within jurisdiction; - court instructs jury that it must accept judicially noticed fact in both criminal and civil cases;

privilege applies to communications from employees/agent if they were authorized by corporation to make communication to lawyer on behalf of corporation; exceptions: does not apply where (1) professional services were sought to further crime or fraud or (2) two or more parties consult attorney on matter of common interest and communication is offered by other these parties against another or (3) communication relates to alleged breach of duty between lawyer and client;

doctor-patient & psychotherapist-patient privileges - psychotherapist-patient privilege but no doctor-patient privilege; exceptions: (1) where patient puts his physical or mental condition in issue, e.g. personal injury suit, (2) where professional services were sought to aid in crime or fraud or to escape capture after crime or tort, (3) in case alleging breach of duty between patient and doctor or psychotherapist, e.g. medmal;

spousal privilege - testimony privilege permits witness to refuse to testify against spouse as to anything; - applies only in criminal cases; spousal confidential communication - privilege may apply in any case and protects confidential spousal communications during marriage; - no federal counterpart;

judicial notice procedure for taking judicial notice; - party must request judicial notice to compel judicial notice; - if not requested, court has discretion to take judicial notice; - in 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;