Term
| What is the California/Fed distinction for relevance? |
|
Definition
| In California, the relevant evidence must pertain to a disputed fact. In Fed, the fact of consequence to the action does not have to be in dispute. |
|
|
Term
| What is the California/Fed distinction for the admissibility of character evidence? |
|
Definition
In Fed, character evidence is not admissible in civil cases except for propensity evidence in sexual assault or molestation cases.
In CA, character is admissible for propensity in sexual assault cases, but not molestation cases. |
|
|
Term
| What is excepted from California's Prop 8 criminal case admission of evidence? |
|
Definition
| 1. Hearsay 2. Privileges 3. 352, 4. due process vioations (character, confrontation) |
|
|
Term
| What is the California/Fed distinction for attacks on the victim's character? |
|
Definition
In Fed, the defendant can only use reputation or opinion to attack the victim's credibility.
In California, the defendant can also use specific acts. |
|
|
Term
| What is the California/Fed distinction for the victim's character in a murder case? |
|
Definition
In Fed: Prosecution can introduce evidence of the victim's peaceful character.
CA-The prosecution must wait for the defense to offer evidence of bad character. |
|
|
Term
| What is the California/Fed distinction for when a judge may be a witness? |
|
Definition
In Fed-judges can't be witnesses
In CA- judges can be witnesses only if no party objects |
|
|
Term
| What is the California/Fed distinction for when jurors can be witnesses? |
|
Definition
In FED- Jurors may only provide information of external influences that affect the jury verdict.
In CA- Jurors can provide information on any improprieties. |
|
|
Term
| What is the California/Fed distinction for bolstering the witness' credibility? |
|
Definition
| Bolstering is permitted in CA before attack. |
|
|
Term
| What is the California/Fed distinction for the use of convictions to impeach witnesses in civil trials? |
|
Definition
In Fed, can introduce felonies and misdemeanors involving dishonesty.
In CA it can only be felonies. |
|
|
Term
| What is the California/Fed distinction for the use of convictions to impeach a criminal defendant witness in criminal cases? |
|
Definition
| FED-Felonies and misdos involving dishonesty are automatically admissible subject to reverse403 CA-Felony and misdo convictions only if they involve moral turpitude and regular 352. |
|
|
Term
| What is the California/Fed distinction for specific instances of dishonest conduct? |
|
Definition
| In Fed, they may only be inquired into on cross. In CA criminal cases only they may be proven by extrinsic evidence. |
|
|
Term
| What is the California/Fed distinction for impeachment with a prior inconsistent statement? |
|
Definition
In FED- may only be used for substantive purposes if under oath in a prior proceeding.
IN CA-Always admissible for their truth. |
|
|
Term
| What is the California/Fed distinction for rehabilitation of a witness through use of a prior consistent statement? |
|
Definition
Fed- must have occurred before the witness had a motive to lie/fabricate
CA- Does not matter if the witness had a motive to fabricate, as long as the statement was made before the witness' alleged inconsistent statement. |
|
|
Term
| What is the California/Fed distinction for expert opinion testimony? |
|
Definition
Fed-Daubert
1. Qualified expert witness
2. Testimony is based on sufficient facts or data
3. Testimony is a product of reliable scientific methods/principles
CA-The method to be testified has been generally accepted in the relevant scientific community. |
|
|
Term
| What is the California/Fed distinction for the age of the ancient document rule |
|
Definition
An ancient document is must be found in a condition unlikely to create suspicion and found in a place where it would likely be authentic.
Fed-20 years old
Cal-30 years old |
|
|
Term
| What is the California/Fed distinction for best evidence rule? |
|
Definition
Fed- Handwritten copies of documents usually inadmissible
CA-Handwritten copies are the same as other duplicates. |
|
|
Term
| What is the California/Fed distinction for privileges? |
|
Definition
1. Fed does not recognize CA's physician-patient privilege
2. Fed does not have a privilege for a reporter to refuse to leak their source, CA does
3. Fed does not recognize the sexual assault counselor-victim privilege |
|
|
Term
| What is the California/Fed distinction for subsequent remedial measures? |
|
Definition
| In CA, this limitation does not apply in strict liability cases. |
|
|
Term
| What is the California/Fed distinction for offers to pay medical expenses? |
|
Definition
Fed-can't introduce the offer, but can introduce the accompanying statements.
CA-Cannot introduce either the offer or accompanying statement |
|
|
Term
| What is the California/Fed distinction for discussions of plea negotiations? |
|
Definition
Fed-limited to only negotiations with the prosecutor
CA-covers also some conversations with police in addition to prosecutor |
|
|
Term
| What is the California/Fed distinction for rape shield laws? |
|
Definition
Fed-propensity evidence against sexual offender defendant admissible in civil cases.
CA-Propensity evidence not admissible in civil cases. |
|
|
Term
| What is the California/Fed distinction for hearsay/nonhearsay? |
|
Definition
| In CA, all the stuff that's called non-hearsay under fed is called a hearsay exception such as admissions. |
|
|
Term
| What is the California/Fed distinction for prior statements of ID |
|
Definition
| Cal-The witness must testify that events were fresh at the time of identification and the witness believed the ID was accurate. |
|
|
Term
| What is the California/Fed distinction for vicarious admissions (co-conspirators, authorized, agent) |
|
Definition
Fed- the judge decides whether the foundation is adequate
CA- the jury decides whether the foundation is adequate |
|
|
Term
| What is the California/Fed distinction for the definition of unavailability? |
|
Definition
Fed-Includes a lack of memory
CA-Does not. |
|
|
Term
| What is the California/Fed distinction for a dying declaration? |
|
Definition
| Fed- Declarant does not need to die, only admissible in criminal homicide cases and civil cases. In CA-the declarant must die admissible in all criminal and civil cases |
|
|
Term
| What is the California/Fed distinction for present sense impressions? |
|
Definition
| CA-Only has the contemporaneous statement exception (statement to explain, qualify, or make understandable conduct of the declarant while engaged in the conduct) |
|
|
Term
| What is the California/Fed distinction for state of mind? |
|
Definition
Fed-Present conditions and future intent.
CA-Includes past state of mind. |
|
|
Term
| What is the California/Fed distinction for statements for medical diagnosis or treatment? |
|
Definition
Fed-Statements regarding the source of injury is admissible if reasonably pertinent to diagnosis or treatment.
Ca-source not covered. |
|
|
Term
| What is the California/Fed distinction for business records? |
|
Definition
1. Kept in course of regularly conducted activity of business, organization
2. The making of the record was a regular practice of that business
3. The record was made at or near the time of the event from someone with knowledge of the event.
In CA it does not need to be a regular practice to make that entry so long as it was made within the regular course of business. |
|
|
Term
| What is the California/Fed distinction for public records? |
|
Definition
Fed-burden on opponent to show not trustworthy
CA-burden on proponent to show trustworthy |
|
|
Term
| What is the California/Fed distinction for the residual exception? |
|
Definition
Fed-has residual exception
CA-No residual exception |
|
|
Term
| What is the California/Fed distinction for mandatory and permissive taking of judicial notice? |
|
Definition
Fed-the court must take judicial notice of matters generally know within the jx and the court may do it sua sponte.
CA-Whether requiested or not, the court must take judicial notice of matters generally known within the jx |
|
|
Term
| What is the California/Fed distinction for requiring the jury to accept a judicially noticed fact? |
|
Definition
FED- In the feds, a criminal jury MAY take judicial notice, but never must.
In CA-mandatory judicial notice for jurors is always valid. |
|
|
Term
| What are the requirements for recorded recollection? |
|
Definition
1. The record is on a matter that the witness once knew about
2. The record was made or adopted by the witness when the matter was fresh in the witness' memory
3. The record acccurately reflects the witness' knowledge
4. The witness states that she cannot recall the event well enough to testify fully and accurately even after consulting the record on the stand. |
|
|
Term
| The judge is not bound to the rules of evidence when making findings of law preliminarily except... |
|
Definition
| He may not consider privileged information in his determination. |
|
|
Term
| What are the requirements for judicial notice? |
|
Definition
1. An adjudicative fact (those that relate to the parties and their activities)
AND
2. It is generally known within the territorial jurisdiction of the trial court
OR
3. It can be accurately and readily be determined from sources whose accuracy cannot be reasonably questioned. |
|
|
Term
| Which witness' may not be excluded? |
|
Definition
1. A party who is a natural person
2. An officer or employee of a party that is not a natural person after being designated the party's personal representative
3. A person whose presence is essential such as an investigating officer.
4. A person permitted by statute such as a victim. |
|
|
Term
| Extrinsic evidence of a party's prior inconsistent statement is admissible only if: |
|
Definition
1. Under oath
2. Given an opportunity to explain/deny |
|
|
Term
| Can't impeach a witness as to... |
|
Definition
|
|
Term
| Lay witness testimony must be... |
|
Definition
Rationally based on the perception of the witness
2. Helpful to a clear understanding of the witness' testimony. |
|
|
Term
| Expert testimony subject matter... |
|
Definition
1. Must be scientific, technical, or specialized in nature
2. Will help the trier of fact understand the evidence or determine a fact in issue. |
|
|
Term
| If a lay witness has personal knowledge of a claimed author's handwriting, can they testify as to whether the document is in that person's handwriting? |
|
Definition
| ONLY if they did not become familiar with the handwriting for the purposes of litigation. |
|
|
Term
| When does the best evidence rule come into play? |
|
Definition
1. The document is a writing: a letter, recording, photograph, x-ray
2. The contents of the document are at issue or the witness is relying on the contents of the document when testifying. |
|
|
Term
|
Definition
1. Spousal immunity
2. Confidential marital communications privilege
3. Attorney-client (future crime/fraud exception)
4. Physician-patient (not FRE)
5. Psychotherapist-patient unless the mental state is at issue.
6. Self-incrimination
7. Clergy-penitent (CEC only)
8. Journalist source (CEC only) |
|
|
Term
| For prior statements introduced for substantive purposes, the witness must always be... |
|
Definition
| Testifying at the current trial |
|
|
Term
| What are the requirements for adoptive admissions? |
|
Definition
1. The person was present and heard and understood the statement
2. The person had the ability and opportunity to deny the statement
3. A reasonable person similarly situated would have denied the statement. |
|
|
Term
| What types of public records can be admitted? |
|
Definition
1. The activities of an office or agency
2. An observaation of a person under a duty to report the observation (with the exception of police reports in criminal cases)
3. Factual findings of a legal investigations |
|
|
Term
| To admit an out of court testimonial statement of an unavailable hearsay declarant against a D... |
|
Definition
| The defendant must have had a prior opportunity to cross examine the declarant. |
|
|
