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California Evidence


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Prior Consistent Statements
Admissible for ALL purposes if made before bribe/inconsistent statement. Inadmissible otherwise
Other Nonhearsay exemptions (3)
1) Prior Inconsistent Statements given under oath; 2) Prior consistent statements offered to rebut charge of recent fabrication or impropert influence or motive; 3) statement of identification
CA Distinction: Subsequent remdial measures or repairs
California DOES NOT recognize the exception for defective product design in products liability cases
CA Distinction: Hearsay: Existing physical/mental condition
Hearsay: Dying Declaration (Declarant Unavailable)
Declarant must believe he/she is about to die and describe causes/circumstances leading to impending death (doesn't actually have to die). Admissible in civil cases and homicide cases
Relevancy: Similar Occurrences - General Definition
Similar occurences are usually irrelevant unlesss there are certain similarities between that evidence and the people/events at issue
CA Distinction: Settlements, offers to settle, related statements
California makes discussions during mediation proceedings inadmissible (FRE has no comparable rule)
CA Distinction: Payments or offers to pay medical expenses
California makes inadmissible admissions of fact made in the course of making such payments/offers. The FRE makes these extra statements admissible.
CA Distinction: Hearsay: Business Records Exception
FRE: Applies to events, conditions, diagnoses, and opinions. CEC does not recognize diagnoses or opinions, but simple diagnoses/opinions are usually admitted.
CA Distinction: Authentication: Ancient Documents
CA = 30 years, FRE = 20 years. Both require lack of irregularities/erasures and that it is found in a natural place of custody
Hearsay: Present Sense Impression (Declarant Availability Immaterial)
Declarant describes/explains an evidence/condition made while declarant was perceiving the event or immediately afterward
Declarant Unavailable: Definition (5)
1) Court exempts D from testifying due to privilege; 2) Declarant is dead/sick; 3) Proponent of statement cannot procure D's attendance by process or other reasonable means; 4) Declarant refuses to testify despite court order; 5) Declarant's memory fails
CA Distinction: Hearsay: Dying Declaration
FRE: Only applies in civil and homicide cases, declarant doesn't have to be dead. CEC: Admissible in all civil and criminal cases, but declarant must be dead.
Character Evidence in Criminal Cases: D's Character - Types of Evidence Admissible
Reputation/Opinion evidence are available on direct exam. Reputation/Option/Specific Acts are admissible on cross-exam
CA Distinction: Impeachment by Prior Inconsistent Statement
FRE/CEC say nonhearsay if only to impeach. It's admissible hearsay in CA for its substance, even if it wasn't given under oath (FRE says its nonhearsay if under oath).
CA Distinction: Other CA Privileges (3)
Clergy-Penitent, Counselor-Victim of sexual assault or domestic violence, reporter's immunity from contempt for refusing to reveal a source
Impeachment with Conviction for Crime involving False Statement
All convictions for crimes of false statements (both felonies and misdemeanors), for fraud, forgery, perjury, are admissible. No balancing of unfair prejudice.
Best Evidence Rule
Applies when evidence is offered to prove the contents of a writing Wills, deeds, trusts, contracts). Original is required, with many exceptions (voluminous documents can be summarized, duplicates)
CA Distinction: Judicial Notice - Conclusivity of Facts
FRE: Not conclusive in criminal cases. CEC: Conclusive in criminal cases
Hearsay: Business Records (Declarant Availability Immaterial) (5)
1) Record of events, conditions, opinions, or diagnoses; 2) Kept in course of regularly conducted business activity; 3) Made at/near time of matters described; 4) By person with knowledge of the facts in the record; 5) Regular practice of business to make the record
CA Distinction: Self-Authenticating Documents
1) Certified copies of public documents (deeds); 2) Acknowledged documents (notarized); 3) official publications (gov't pamphlets); 4) newspapers; 5) periodicals; 6) business records (FRE ONLY); 7) trade inscriptions (FRE ONLY)
Self-Authenticating Writings (7)
1) Certified copies of public documents (deeds); 2) Acknowledged documents (notarized); 3) official publications (gov't pamphlets); 4) newspapers; 5) periodicals; 6) business records; 7) trade inscriptions
Impeachment with Conviction for a Crime not Involving False Statement
Misdemeanors are not available. Felonies are available but may be excluded for unfair prejudice
CA Distinction: Hearsay: Former Testimony
Both FRE/CEC require opportunity to examine + similar motive to examine. FRE: Predecessor's-in-interest are bound in civil cases. CEC: Parties with "similar interests" are bound, even if no privity (much broader).
Best Evidence Rule: Testimony re contents of writing
Admissible when original is lost or destroyed, unless bad faith by proponent (purposeful destruction)
Legal Relevance
Is probative value substantially outweighed by unfair prejudice? Look for emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another purpose
Hearsay: Statement of past/present mental/physical condition for medical diagnosis or treatment (Declarant Availability Immaterial)
Statements concerning past/present mental/physical condition, and its causes, are admissible if made for medical diagnosis or treatment
Impeachment with Reputation/Opinion regarding Truthfulness
Extrinsic evidence is available to prove this.
Attorney-Client Privilege Exceptions (3)
1) Professional services sought to further what client knew/should have known to be a crime or fraud; 2) Communication relates to alleged breach of duty between lawyer/client; 3) 2 or more parties consult an attorney on a matter of common interest and the communication is offered by 1 party against another
CA Distinction: Doctor-Patient, Psychotherapist-Patent Privilege Exceptions (5)
1) Patient puts physical conditio at issue; 2) Physician's services were sought to aid in crime, fraud, or to escape capture; 3) Breach of duty between doctor and patient; 4) psychotherapist can break privilege if he belives the patient is a danger to himself or others (CA ONLY); 5) Doctor can break privilege to report certain crimes to police, such as gunshot wounds (CA ONLY)
CA Distinction: Character evidence in Civil Cases
Character evidence is inadmissible to prove conduct. FRE makes exceptions for sexual assault and child molestation. CEC makes no such exceptions.
Nonhearsay: Vicarious party admissions
1) Authorized spokesperson of party or; 2) employee of party concerning matter within scope of employment and made during employment relationship
Hearsay - Definition
Out of court statement offered to prove the truth of the matter asserted. A statement = verbal or written expression of assertion
Witness Competency (4)
1) Personal Knowledge; 2) Present recollection; 3) Communication; 4) Sincerity (oath)
Hearsay: Declaration of then existing physical/mental condition or state of mind (Declarant Availability Immaterial)
State of mind can show present intent to do something later. NOT admissible to prove the fact remembered or believed
Best Evidence Rule: Duplicates
Duplicates are typically admissible (carbon copy, photocopy, but NOT handwritten copy), unless the authenticity of the original is disputed.
CA Distinction: Procedure for Judicial Notice
FRE: Parties must request judicial notice to compel the court to take it. CEC: Court is compelled to take judicial notice of matters generally known within the jurisdiction, whether requested or not.
CA Distinction: Impeachment by Prior Misdemeanor Conviction
CEC says misdemeanors are inadmissible. Prop. 8 allows misdemeanors of moral turpitude in criminal case, subject to CEC 352 balancing.
CA Distinction: Secondary Evidence Rule - Duplicates
Handwritten notes are acceptable duplicates
CA Distinction: Impeachment Convictions - 10 year rule
California does not recognize the 10 year rule, but it is something to consider during CEC 352 balancing
Nonhearsay: Adoptive Admission
Non-party makes a statement and party indicates belief in its truth
Impeachment with Evidence of Bias, Interest, Motive
Extrinsic evidence is available as long as the foundation is set: W has opportunity to explain or deny the bias, interest, or motive
Impeachment with Non-Conviction Misconduct Evidence
Acts that did not result in conviction are admissible if they involve lying. Extrinsic evidence is inadmissible (only cross-exam is available)
Lay Opinion Testimony (3)
Admissible if: 1) Rationally based on W's perceptions; 2) Helpful to trier of fact; 3) NOT based on scientific or specialized knowledge. EXAMPLES: speed of car, sanity, intoxication, emotions, value of W's property
Logical Relevance
Makes the existence of any fact of consequence more or less probable
CA Distinction: Hearsay: Vicarious Party Admission
California is narrower. Employer is only vicariously liable for employee's statements if vicariously liable for employee's negligence under respondeat superior
Public Policy Relevance Exclusion: Payment or offers to pay medical expenses
Evidence of payments/offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. BUT, related statements are still admissible (contrast with Settlement offers)
MIMIC (5): Use of specific instances of D's bad conduct to prove something OTHER than character
1) Motive; 2) Intent: 3) Mistake (absence of); 4) Identity; 5) Common plan or scheme. Courts can exclude MIMIC evidence for unfair prejudice
Character Evidence: Purposes (3)
1) Character is at issue in the case (civil); 2) Circumstantial evidence of conduct (criminal); 3) Impeachment/Support of a witness
Hearsay: Excited Utterance (Declarant Availability Immaterial)
1) Statement relates to startling event; 2) Declarant still under stress of excitement created by event/condition
Hearsay Exceptions: Not offered to prove the truth of the matter asserted (4)
1) Words have independent legal significance; 2) Offered to show effect on listender; 3) Offered to show speaker's knowledge of facts stated; 4) Circumstantial evidence of state of mind
CA Distinction: Hearsay: Public Records (3)
1) Record describes the activities of the office; 2) Record describes matters observed pursuant to duty imposed by law; 3) Record contains factual findings of a lawful investigation. FRE doesn't allow (2) or (3) in criminal cases, but CA allows it
Nonhearsay: Admission of Party Opponent
Admission = statement by party opponent. Not subject to personal knowledge requirement or opinion rule.
Past Recollection Recorded (5)
1) W once had personal knowledge; 2) Document made by witness, or adopted the statements; 3) Document was written/adopted at time when facts were fresh in W's memory; 4) Document was accurate when made; 5) Witness now has insufficient recollection to testify
CA Distinction: Expert Opinions
FRE uses Daubert/Kumho Standard. CEC uses Kelley/Frye General Acceptance Standard - opinion must be based on prcinples generally accepted by experts in the field.
CA Distinction: Attorney-Client Privilege
FRE: Employees must be authorized to speak for the corporation; CEC: Natural person to speak for the corp. (in-house counsel or CEO), or person instructed to talk to the lawyer. In practice, no significant difference.
CA Distinction: Hearsay: Former Testimony - CA Deposition Rule
Deposition testimony given in the same civil suit is admissible if the deponent is unavailable or lives more than 150 miles from the courthouse.
Character Evidence in Criminal Cases: D's Character
Only D can open the door. EXCEPTIONS: 1) Case involves sexual assault or child molestation; 2) D has already offered evidence of V's character - P can offer evidence that D has that same trait on direct exam
Confrontation Clause
Out of court statements may be inadmissible if they are "testimonial." "Testimonial" = statements made by police to further investigation and not during an emergency.
CA Distinction: Hearsay: Judgments of Conviction
FRE allows for both criminal/civil cases. CEC makes them inadmissible in civil trials. Prop. 8 permits judgments of convictions (both felony and misdemeanor) if they have moral turpitude. Admissible under the Public Records exception as well.
Charactive Evidence in Criminal Cases: Va's Character - Types of Evidence Admissible
Reputation/Opinion evidence are available on direct exam. Reputation/Option/Specific Acts are admissible on cross-exam
Doctor-Patient Privilege (4)
1) Communicatons between doctor and patient; 2) Confidential; 3) Must be for diagnosis or treatment; 4) Info must be pertinent to diagnosis/treatment
CA Distinction: Spousal Communication Privilege
Hearsay: Public Records (Declarant Availability Immaterial) (3)
Admissible if one of the following: 1) Record describes activities of the office (manual); 2) Record describes matters observed pursuant to duty imposed by law; or 3) Record contains factual findings resulting from investigation made pursuant to authority granted by law, if trustworthy. EXCEPTIONS: (2) and (3) do not apply to criminal cases
CA Distinction: Impeachment by Non-Conviction Misconduct Bearing on Truthfulness
FRE requires act of lying, extrinsic evidence is inadmissible. California says that this type of evidence is inadmissible in civil case, but Prop. 8 makes moral turpitude acts admissible and allows extrinsic evidence.
CA Distinction: Hearsay: Party Admission
Semantic difference. FRE calls this nonhearsay and CEC says this is a hearsay exception
Marital Communications Privileges
Protects confidential spousal communications during marriage. Applies to both criminal/civil cases. Privilege belongs to both spouses.
CA Distinction: Chracter Evidence in Criminal Cases: Types of Evidence
FRE allows opinion/reputation on direct, opinion/reputation/specific acts on cross-exam. To Prove D's character, CEC allows only opinion/reputation on direct/cross, but Prop. 8 makes all 3 available subject to balancing. When V's character is challenge, reputation/opinion/specific acts are all available on both direct/cross.
Public Policy Relevance Exclusion: Subsequent Remdial Measures or Repairs
Evidence of safety measures/repairs after an accident are inadmissible to prove culpable conduct. In the case of products liability, defective product design is covered. We don't want to discourage repairs.
CA Distinction: Witness Competency
Both FRE and CEC require: 1) Personal knowledge; 2) ablity to communicate; 3) oath to tell the truth; 4) present memory. California also requires witnesses to understand the legal duty to tell the truth.
Character Evidence: Rape Shield Statutes - Civil Cases
Reputation, Opinion, and Specific Instances are admissible if probative value substantiall outweighs unfair prejudice. EXCEPTION: Reputation evidence is only available if plaintiff puts her reputation at issue.
Authentication of Writing by Signature (7)
1) Admission; 2) Eyewitness testimony who saw person sign; 3) Expert testimony; 4) Lay opinion by someone who knows the signature; 5) Circumstantial evidence under reply-letter; 6) Ancient documents rule (20 years, in irregularities on its face, found in place of natural custody); 7) Genuine exemplar for jury to compare
Character Evidence in Civil Cases
Character evidence is admissible if character is at issue (defamation, negligent entrustment, child custody). Character evidence is inadmissible to prove conduct. EXCEPTIONS: Sexual assault or child molestation cases
CA Distinction: Attorney-Client Privilege Exceptions (4)
1) Professional services sought to further what client knew/should have known to be a crime or fraud; 2) Communication relates to alleged breach of duty between lawyer/client; 3) 2 or more parties consult an attorney on a matter of common interest and the communication is offered by 1 party against another; 4) Lawyer reasonably believes disclosure is necessary to prevent death or great bodily harm (CA ONLY)
Public Policy Relevance Exclusion: Settlements, offers to settle, and pleas in criminal cases
Pleas, offers to plea and related statements (including nolo contendere) are inadmissible to prove guilt. EXCEPTIONS: No claim yet asserted or no dispute as to liability or damages
Impeachment with Prior Convictions: 10 year rule
Convictions over 10 years old are inadmissible unless probative value substantially outweighs unfair prejudice (heavy presumption against admitting evidence)
CA Distinction: Impeachment by Prior Felony Conviction
Moral Turpitude standard for relevant evidence. Moral Turpitude = crimes of lying, violence, theft, extreme recklessness, sexual misconduct. Cannot be involuntary or negligence.
Objections to form of testimony/questions (8)
1) Calls for narrative; 2) Unresponsive; 3) No leading on direct; 4) Leading OK on cross; 5) Leading OK on direct if adverse witness, hostile witness, witness needs help; 6) Assumes facts not in evidence; 7) Argumentative; 8) Compound
Relevancy: Similar Occurences - Exceptions (8)
1) Pattern of fraudulent claims; 2) To show a preexisting condition; 3) Previous acts relevant to show intent; 4) Rebut defense of impossiility; 5) Comparable sales to establsh value; 6) Habit; 7) Routine practice (business habits); 8) Industrial custom to prove standard of care
CA Distinction: Spousal Testimonial Privilege
FRE applies only in criminal cases. CEC applies in both civil/criminal cases. Spouse cannot even be called.
Spousal Testimonial Privilege
Belongs to the testifying sppouse. Only applies in criminal cases
Expert Opinion Testimony (5)
1) Helpful to jury; 2) W must be qualified; 3) W must believe in opinion to reasonable degree of certainty; 4) Opinion must be supported by a proper factual basis; 5) Opinion must be based on reliable principles that were reliably applied
CA Distinction: CA Distinction: Character Evidence in Criminal Cases (2)
Prosecution may be first to offer evidence of D's character in: 1) Cases of sexual assault, child molestation, and domestic violence; 2) If D opens the door to V's character for violence only, Prosecution can introduce evidence of D's character for violence
CA Distinction: Hearsay: Statement Against Interest (Declarant Unavailable)
Federal Only: If defendant uses statement against interest for exculpation, it needs to be corroborated. California only: Exception includes statements against societal interest that would make the declarant an object of hatred, ridicule, or social disgrace in the community (FRE only recognizes financial and criminal interests).
Character Evidence: Rape Shield Statutes - Criminal Cases
Reputation/Opinion evidence is inadmissible. Specific instances of V's conduct are admissible only to prove: 1) 3rd party source of injury/semen; 2) Prior acts of consensual intercourse between D and V.
Public Policy Relevance Exclusion: Settlements, offers to settle, and pleas in civil cases
Evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. EXCEPTIONS: No claim yet asserted or no dispute as to liability or damages
Expert Opinion Testimony - Daubert/Kumho Standard (4)
1) Peer reviewed/Published in scientific journals; 2) Low error rate; 3) Tested and subject to retesting; 4) reasonable level of acceptance
Attorney-Client Privilege (5)
1) Communication between attorney and client or their reps; 2) Confidential; 3) Meant to facilitate legal services; 4) Attorney can invoke on behalf of the client; 5) Privilege survives death of client
Nonhearsay: Co-conspirator statements
Nonhearsay if made during course and in furtherance of conspiracy
Impeachment: General Approach (3)
1) Is source of impeachment extrinsic evidence or testimony at proceeding?; 2) If extrinsic, is it admissible given impeachment technique?; 3) Are there any foundational requirements?
CA Distinction: Prior Consistent Statement
Semantic difference. Nonhearsay under FRE, Admissible Hearsay with exception under CEC.
CA Distinction: Hearsay: OJ Exception (4)
California Only: 1) Statements made at/near time of injury/threat; 2) Unavailable declarant; 3) Describing/explaining infliction or threat; 4) In writing/recording or made to police/medical personnel (911) under trustworthy circumstances
Public Policy Relevance Exclusion: Liability Insurance
Inadmissible to prove culpable conduct such as negligence or D's ability to pay. We want to encourage people to get insurance
Past Recollection Refreshed
Witness can use anything to refresh his/her memory ("I remember"). Opponent may inspect and offer into evidence anything used to refresh memory.
Judicial Notice: Procedure
Party must request judicial notice to compel judicial notice. Court has discrtion to take judicial notice whenever it wants, even on appeal
Hearsay: Declaration against Interest (Declarant Unavailable)
Admissible if statement is against financial interests or would subject declarant to criminal liability. If statement is offered to exculpate defendant, the statement must be corroborated
Impeachment by Prior Inconsistent Statement
Not hearsay if given under oath at trial or depo. Otherwise, hearsay but available to impeach. Extrinsic evidence is ok (but not for collateral matters), as long as foundation is set: W has opportunity to explain or deny the prior inconsistent statement
CA Distinction: Expressions of Sympathy
California makes expressions of sympathy inadmissible (but allows statements that accompany the sympathy to be admissible). FRE has no comparable statute
Judicial Notice: Conclusivity of Facts
Civil: Jury must accept fact as conclusive; Criminal: Jury has discretion
Character Evidence in Criminal Cases: V's Character
Only D can open the door. If door is open, Prosecution can: 1) Rebut D's evidence of V's character; or 2) In homicide cases, if D claims V attacked first, Prosecution can offer evidence of V's character for peacefulness.
Authentication: Photographs
Personal knowledge issue. Need someone to testify that the photo represents what it should.
CA Distinction: Declarant Unavailable Definition (5)
1) Declarant dead/sick; 2) Declarant exempt due to privilege; 3) Proponent cannot obtain statement through reasonable means; 4) declarant has total memory loss (FRE only requires loss of memory for this subject); 5) Declarant refuses to testify out of fear (FRE doesn't require the fear part).
Authentication of non-unique items: Chain of Custody
Generic items like a bag of powder, generic handgun, etc.
Doctor-Patient Privielge Exceptions (3)
1) Patient puts physical conditio at issue; 2) Physician's services were sought to aid in crime, fraud, or to escape capture; 3) Breach of duty between doctor and patient
CA Distinction: HearsayL Statement of Past/Present Mental/Physical condition for medical diagnosis/treatment
FRE: Statements made for medical diagnosis/treatment. CEC is narrower: Only allows statements to minors pertaining to child abuse or neglect. However, a related CA rule allows these statements if the declarant is unavailable and the condition is an issue in the case (statement can be made to anyone)
CA Distinction: Pleas later withdraw, offers to plea
These states are inadmissible under both the FRE and CEC, but Prop. 8 may make it admissible, subject to CEC 352 balancing
Hearsay: Judgment of Previous Conviction (Declarant Availability Immaterial)
1) Felony convictions are admissible in both criminal/civil cases to prove any fact essential to the judgment; 2) Inadmissible if offered by prosecution for purposes other than impeachment if the conviction is not for the defendant
Prop. 8 Exceptions (7)
1) Exclusions under U.S. Constitution (Confrontation Clause); 2) Hearsay; 3) Privileges; 4) Limits on character evidence about the victim in a rape case; 5) Rule prohibiting prosecution from offering evidence of D's character before D opens the door; 6) Secondary Evidence Rule; 7) CEC 352 for Unfair Privilege
Learned Treatise Hearsay Exception
Learned Treatise is admissible for impeachment/substantive evidence if it is an "accepted authority in the field."
CA Distinction: Hearsay: Excited Utterance
Same in both FRE/CEC
Evidence to support W's credibility
Inadmissible unless W's credibility is attacked first
CA Distinction: Logical Relevance
Federal: Any fact of consequence; California: ONLY facts of consequence in dispute
CA Distinction: Learned Treatise Exception
Learned treatises are only admissible for matters of general notoriety or interest (very narrow exception that is hardly ever used). FRE says it just has to be accepted authority in the field.
Judicial Notice: Types of facts
1) Facts generally known within the jurisdiction; or 2) Facts capable of accurate and ready determination by resport to accurate sources
Psychotherapist-Patient Privilege (4)
1) Communication between psychotherapist and patient; 2) Confidential; 3) Meant to facilitate therapy services; 4) Psychotherapist can invoke on behalf of the client;
CA Distinction: Hearsay: Present sense impressions
FRE: Broadly allows statements of what the declarant perceives. CEC narrowly only allows statements explaining conduct of the declarant as it is made.
Impeachment by Contradiction
Extrinsic Evidence inadmissible to impeach on a collateral matter.
Expert Opinion Testimony -Types of evidence an expert may rely on (3)
1) Admitted evidence; 2) Personal knowledge; 3) Inadmissible evidence reasonably relied upon (must be disclosed, but is not admitted into evidence)
Hearsay: Former Testimony Exception (Declarant Unavailable)
Testimony offered in an earlier proceeding/depo is admissible if: 1) party against whom testimony is offered had an "opportunity to examine that person" and the "motive to examine" was similar to now; OR 2) In civil cases, there were predecessor's-in-interest
CA Distinction: Hearsay: Prior Inconsistent Statement
Federal: If given under oath, prior inconsistent statements are nonhearsay. In California, prior inconsistent statements are admissible hearsay for all purposes, even if not given under oath.

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