California Evidence

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Logical Relevance
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Makes the existence of any fact of consequence more or less probable
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Legal Relevance
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Is probative value substantially outweighed by unfair prejudice? Look for emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another purpose
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Public Policy Relevance Exclusion: Liability Insurance
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Inadmissible to prove culpable conduct such as negligence or D’s ability to pay. We want to encourage people to get insurance
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Public Policy Relevance Exclusion: Subsequent Remdial Measures or Repairs
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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.
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Public Policy Relevance Exclusion: Settlements, offers to settle, and pleas in civil cases
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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
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Public Policy Relevance Exclusion: Settlements, offers to settle, and pleas in criminal cases
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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
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Public Policy Relevance Exclusion: Payment or offers to pay medical expenses
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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)
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Relevancy: Similar Occurrences – General Definition
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Similar occurences are usually irrelevant unlesss there are certain similarities between that evidence and the people/events at issue
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Relevancy: Similar Occurences – Exceptions (8)
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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
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Character Evidence: Purposes (3)
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1) Character is at issue in the case (civil); 2) Circumstantial evidence of conduct (criminal); 3) Impeachment/Support of a witness
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Character Evidence in Civil Cases
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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
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Character Evidence in Criminal Cases: D’s Character
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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
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Character Evidence in Criminal Cases: V’s Character
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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.
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Character Evidence in Criminal Cases: D’s Character – Types of Evidence Admissible
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Reputation/Opinion evidence are available on direct exam. Reputation/Option/Specific Acts are admissible on cross-exam
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Charactive Evidence in Criminal Cases: Va’s Character – Types of Evidence Admissible
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Reputation/Opinion evidence are available on direct exam. Reputation/Option/Specific Acts are admissible on cross-exam
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Character Evidence: Rape Shield Statutes – Criminal Cases
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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.
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Character Evidence: Rape Shield Statutes – Civil Cases
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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.
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MIMIC (5): Use of specific instances of D’s bad conduct to prove something OTHER than character
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1) Motive; 2) Intent: 3) Mistake (absence of); 4) Identity; 5) Common plan or scheme. Courts can exclude MIMIC evidence for unfair prejudice
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Witness Competency (4)
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1) Personal Knowledge; 2) Present recollection; 3) Communication; 4) Sincerity (oath)
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Objections to form of testimony/questions (8)
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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
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Past Recollection Refreshed
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Witness can use anything to refresh his/her memory (“I remember”). Opponent may inspect and offer into evidence anything used to refresh memory.
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Past Recollection Recorded (5)
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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
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Lay Opinion Testimony (3)
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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
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Expert Opinion Testimony (5)
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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
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Expert Opinion Testimony -Types of evidence an expert may rely on (3)
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1) Admitted evidence; 2) Personal knowledge; 3) Inadmissible evidence reasonably relied upon (must be disclosed, but is not admitted into evidence)
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Expert Opinion Testimony – Daubert/Kumho Standard (4)
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1) Peer reviewed/Published in scientific journals; 2) Low error rate; 3) Tested and subject to retesting; 4) reasonable level of acceptance
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Learned Treatise Hearsay Exception
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Learned Treatise is admissible for impeachment/substantive evidence if it is an “accepted authority in the field.”
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Evidence to support W’s credibility
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Inadmissible unless W’s credibility is attacked first
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Prior Consistent Statements
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Admissible for ALL purposes if made before bribe/inconsistent statement. Inadmissible otherwise
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Impeachment: General Approach (3)
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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?
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Impeachment by Contradiction
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Extrinsic Evidence inadmissible to impeach on a collateral matter.
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Impeachment by Prior Inconsistent Statement
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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
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Impeachment with Evidence of Bias, Interest, Motive
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Extrinsic evidence is available as long as the foundation is set: W has opportunity to explain or deny the bias, interest, or motive
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Impeachment with Conviction for Crime involving False Statement
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All convictions for crimes of false statements (both felonies and misdemeanors), for fraud, forgery, perjury, are admissible. No balancing of unfair prejudice.
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Impeachment with Conviction for a Crime not Involving False Statement
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Misdemeanors are not available. Felonies are available but may be excluded for unfair prejudice
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Impeachment with Prior Convictions: 10 year rule
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Convictions over 10 years old are inadmissible unless probative value substantially outweighs unfair prejudice (heavy presumption against admitting evidence)
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Impeachment with Non-Conviction Misconduct Evidence
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Acts that did not result in conviction are admissible if they involve lying. Extrinsic evidence is inadmissible (only cross-exam is available)
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Impeachment with Reputation/Opinion regarding Truthfulness
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Extrinsic evidence is available to prove this.
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Hearsay – Definition
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Out of court statement offered to prove the truth of the matter asserted. A statement = verbal or written expression of assertion
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Hearsay Exceptions: Not offered to prove the truth of the matter asserted (4)
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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
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Nonhearsay: Admission of Party Opponent
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Admission = statement by party opponent. Not subject to personal knowledge requirement or opinion rule.
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Nonhearsay: Vicarious party admissions
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1) Authorized spokesperson of party or; 2) employee of party concerning matter within scope of employment and made during employment relationship
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Nonhearsay: Co-conspirator statements
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Nonhearsay if made during course and in furtherance of conspiracy
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Nonhearsay: Adoptive Admission
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Non-party makes a statement and party indicates belief in its truth
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Other Nonhearsay exemptions (3)
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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
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Hearsay: Former Testimony Exception (Declarant Unavailable)
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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
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Hearsay: Declaration against Interest (Declarant Unavailable)
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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
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Hearsay: Dying Declaration (Declarant Unavailable)
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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
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Declarant Unavailable: Definition (5)
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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
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Hearsay: Excited Utterance (Declarant Availability Immaterial)
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1) Statement relates to startling event; 2) Declarant still under stress of excitement created by event/condition
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Hearsay: Present Sense Impression (Declarant Availability Immaterial)
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Declarant describes/explains an evidence/condition made while declarant was perceiving the event or immediately afterward
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Hearsay: Declaration of then existing physical/mental condition or state of mind (Declarant Availability Immaterial)
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State of mind can show present intent to do something later. NOT admissible to prove the fact remembered or believed
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Hearsay: Statement of past/present mental/physical condition for medical diagnosis or treatment (Declarant Availability Immaterial)
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Statements concerning past/present mental/physical condition, and its causes, are admissible if made for medical diagnosis or treatment
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Hearsay: Business Records (Declarant Availability Immaterial) (5)
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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
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Hearsay: Public Records (Declarant Availability Immaterial) (3)
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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
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Hearsay: Judgment of Previous Conviction (Declarant Availability Immaterial)
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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
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Confrontation Clause
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Out of court statements may be inadmissible if they are “testimonial.” “Testimonial” = statements made by police to further investigation and not during an emergency.
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Authentication of Writing by Signature (7)
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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
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Self-Authenticating Writings (7)
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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
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Authentication: Photographs
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Personal knowledge issue. Need someone to testify that the photo represents what it should.
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Authentication of non-unique items: Chain of Custody
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Generic items like a bag of powder, generic handgun, etc.
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Best Evidence Rule
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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)
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Best Evidence Rule: Duplicates
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Duplicates are typically admissible (carbon copy, photocopy, but NOT handwritten copy), unless the authenticity of the original is disputed.
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Best Evidence Rule: Testimony re contents of writing
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Admissible when original is lost or destroyed, unless bad faith by proponent (purposeful destruction)
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Attorney-Client Privilege (5)
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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
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Attorney-Client Privilege Exceptions (3)
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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
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Psychotherapist-Patient Privilege (4)
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1) Communication between psychotherapist and patient; 2) Confidential; 3) Meant to facilitate therapy services; 4) Psychotherapist can invoke on behalf of the client;
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Doctor-Patient Privilege (4)
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1) Communicatons between doctor and patient; 2) Confidential; 3) Must be for diagnosis or treatment; 4) Info must be pertinent to diagnosis/treatment
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Doctor-Patient Privielge Exceptions (3)
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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
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Spousal Testimonial Privilege
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Belongs to the testifying sppouse. Only applies in criminal cases
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Marital Communications Privileges
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Protects confidential spousal communications during marriage. Applies to both criminal/civil cases. Privilege belongs to both spouses.
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Judicial Notice: Types of facts
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1) Facts generally known within the jurisdiction; or 2) Facts capable of accurate and ready determination by resport to accurate sources
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Judicial Notice: Procedure
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Party must request judicial notice to compel judicial notice. Court has discrtion to take judicial notice whenever it wants, even on appeal
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Judicial Notice: Conclusivity of Facts
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Civil: Jury must accept fact as conclusive; Criminal: Jury has discretion
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Prop. 8 Exceptions (7)
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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
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CA Distinction: Logical Relevance
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Federal: Any fact of consequence; California: ONLY facts of consequence in dispute
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CA Distinction: Subsequent remdial measures or repairs
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California DOES NOT recognize the exception for defective product design in products liability cases
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CA Distinction: Settlements, offers to settle, related statements
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California makes discussions during mediation proceedings inadmissible (FRE has no comparable rule)
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CA Distinction: Payments or offers to pay medical expenses
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California makes inadmissible admissions of fact made in the course of making such payments/offers. The FRE makes these extra statements admissible.
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CA Distinction: Expressions of Sympathy
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California makes expressions of sympathy inadmissible (but allows statements that accompany the sympathy to be admissible). FRE has no comparable statute
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CA Distinction: Pleas later withdraw, offers to plea
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These states are inadmissible under both the FRE and CEC, but Prop. 8 may make it admissible, subject to CEC 352 balancing
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CA Distinction: Character evidence in Civil Cases
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Character evidence is inadmissible to prove conduct. FRE makes exceptions for sexual assault and child molestation. CEC makes no such exceptions.
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CA Distinction: CA Distinction: Character Evidence in Criminal Cases (2)
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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
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CA Distinction: Chracter Evidence in Criminal Cases: Types of Evidence
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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.
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CA Distinction: Witness Competency
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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.
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CA Distinction: Expert Opinions
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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.
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CA Distinction: Impeachment by Prior Inconsistent Statement
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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).
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CA Distinction: Impeachment by Prior Felony Conviction
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Moral Turpitude standard for relevant evidence. Moral Turpitude = crimes of lying, violence, theft, extreme recklessness, sexual misconduct. Cannot be involuntary or negligence.
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CA Distinction: Impeachment by Prior Misdemeanor Conviction
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CEC says misdemeanors are inadmissible. Prop. 8 allows misdemeanors of moral turpitude in criminal case, subject to CEC 352 balancing.
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CA Distinction: Impeachment Convictions – 10 year rule
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California does not recognize the 10 year rule, but it is something to consider during CEC 352 balancing
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CA Distinction: Impeachment by Non-Conviction Misconduct Bearing on Truthfulness
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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.
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CA Distinction: Learned Treatise Exception
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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.
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CA Distinction: Hearsay: Party Admission
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Semantic difference. FRE calls this nonhearsay and CEC says this is a hearsay exception
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CA Distinction: Hearsay: Vicarious Party Admission
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California is narrower. Employer is only vicariously liable for employee’s statements if vicariously liable for employee’s negligence under respondeat superior
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CA Distinction: Hearsay: Prior Inconsistent Statement
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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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CA Distinction: Prior Consistent Statement
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Semantic difference. Nonhearsay under FRE, Admissible Hearsay with exception under CEC.
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CA Distinction: Hearsay: Statement Against Interest (Declarant Unavailable)
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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).
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CA Distinction: Declarant Unavailable Definition (5)
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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).
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CA Distinction: Hearsay: Former Testimony
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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).
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CA Distinction: Hearsay: Dying Declaration
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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.
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CA Distinction: Hearsay: Present sense impressions
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FRE: Broadly allows statements of what the declarant perceives. CEC narrowly only allows statements explaining conduct of the declarant as it is made.
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CA Distinction: Hearsay: Former Testimony – CA Deposition Rule
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Deposition testimony given in the same civil suit is admissible if the deponent is unavailable or lives more than 150 miles from the courthouse.
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CA Distinction: Hearsay: OJ Exception (4)
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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
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CA Distinction: Hearsay: Excited Utterance
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Same in both FRE/CEC
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CA Distinction: Hearsay: Existing physical/mental condition
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SAME
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CA Distinction: HearsayL Statement of Past/Present Mental/Physical condition for medical diagnosis/treatment
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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)
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CA Distinction: Hearsay: Business Records Exception
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FRE: Applies to events, conditions, diagnoses, and opinions. CEC does not recognize diagnoses or opinions, but simple diagnoses/opinions are usually admitted.
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CA Distinction: Hearsay: Public Records (3)
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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
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CA Distinction: Hearsay: Judgments of Conviction
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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.
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CA Distinction: Authentication: Ancient Documents
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CA = 30 years, FRE = 20 years. Both require lack of irregularities/erasures and that it is found in a natural place of custody
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CA Distinction: Self-Authenticating Documents
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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)
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CA Distinction: Secondary Evidence Rule – Duplicates
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Handwritten notes are acceptable duplicates
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CA Distinction: Attorney-Client Privilege
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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.
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CA Distinction: Attorney-Client Privilege Exceptions (4)
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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)
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CA Distinction: Doctor-Patient, Psychotherapist-Patent Privilege Exceptions (5)
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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)
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CA Distinction: Spousal Testimonial Privilege
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FRE applies only in criminal cases. CEC applies in both civil/criminal cases. Spouse cannot even be called.
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CA Distinction: Spousal Communication Privilege
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SAME
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CA Distinction: Other CA Privileges (3)
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Clergy-Penitent, Counselor-Victim of sexual assault or domestic violence, reporter’s immunity from contempt for refusing to reveal a source
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CA Distinction: Procedure for Judicial Notice
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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.
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CA Distinction: Judicial Notice – Conclusivity of Facts
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FRE: Not conclusive in criminal cases. CEC: Conclusive in criminal cases

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