CA Evidence

Competency of Witnes

Federal: every person competent to be a witness in federal court unless otherwise provided by rules; in state court, the trial state's law governs competnency or disqualification of a witness

CA: a person is qualified if he is:

1) Capable of expressing himself either directly or indirectly and capabale of understands the duty to tell the truth

2) Has personal knowledge of the matter; on objection, such personal knowledge must be shown before the court

3) Must take an oath or make an affirmation or declaration in the form provided by law

a) Child 10 or under and dependent w/substantial cognitive impairment may be reuqired to only promise to tell the truth

CA Evidence

Judge as Witness

Unlike Federal: CA: A judge may testify as a witness as long as no party objects

- The judge must inform the parties of any known info regarding the matter he will testify - outside the presence of the jury

- If a party objects, the judge can't testify

- The objection is deemed a motion for a mistrial; the judge must declare a mistrial and order the action to be tried before another judge

A judge or a person in a quasi-judicial position, mediators or arbitrators cannot testify in any subsequent proceeding as to anything occurring at or in conjunction with the prior proceeding; the exceptions are:

1) A statement that could give rise to civil or criminal contempt

2) A statement that could constitute a crime

3) A statement that could be the subject of investigation by the state bar or commision on judicial performance

4) A statement that could give rise to judicial disqualification proceedings under certain provisions of the Code of Civil Procedure

CA Evidence

Refreshing Recollection: Writings

Federal and CA: Writings may be used to refresh a witness' recollection

CA: If a witness uses a writing to refresh her recollection prior to testifying, the writing must be produced at the hearing upon the request of the opposing party

If a writing is not produced, the witness' testimony is stricken unless:

1) the writing is not in control of witness or party eliciting the testimony; and

2) the writing is not reasonably obtainable

In Federal court, the adverse party is entitled to have the writing prouced only if the court in its discretion determines production of hte document is necessary in the interests of justice

CA Evidence

Refreshing Recollection: Hypnosis

CA:Permits a:

- Previously hypnotized witness

- Criminal Case only

- If the judge finds certain procedures have been observed to prevent the hypnotic session from improperly influencing the witness' recollection

Hypnosis will not render testimony inadmissible in a criminal proceeding if:

1) Testimony is limited to maters the witness recalled and related prior to the hypnosis

2) Substance of pre-hypnotic memory was preserved in written, audio or video form prior to the hypnosis; and

3) The hypnosis was conducted with all proper procedures

i) Witten record made prior to hypnosis

ii) Informed consent

iii) The hypnosis session, including all pre and post interviews, was video taped for subsequent review

iv) The hypnosis was performed by a licensed medical doctor, psychologist, licensed clinical or social worker or licensed and experienced marriage and family therapist, independent of and not in the presence of law enforcement, the prosecution or the defense

CA Evidence

Preliminary Fact

The proponent of proffered evidence has the burden of producing evidence as to the existence of a preliminary fact when:

1) The relevence of the evidence depends on the preliminary fact

2) the fact is personal knowledge of a witness oncerning his testimony

3) The fact is authenticity of a writing

4) the evidence is a statement of a person and hte fact is whether the person said it

5) The evidence is conduct of a person and the fact is whether the person so acted

The proffered evidence is inadmissible unless the court finds there is suficient evidence to sustain the finding of the existance of the preliminary fact

CA Evidence

Preliminary Fact: Jury's Role

If the court admits the proffered evidence, the court:

1) may, and on request must, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist; and

2) Must instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists

a) The sole question for the judge is whether a reaosnable jury could find the preliminary fact if the proponent's evidence is believed

b) No equivalent Federal Rule

All questions of fact are to be committed to the jurors, including questions regarding the credibility of a witness and hearsay declarants

CA Evidence

Lay Witness Opinion

CA and Federal similar

1) Opinion must be rationally based on the witness's perception

2) Opinion is helpful to a clear understanding of testimony

3) Witness may state reasons for the opinion on direct examination

4) The court may (must on objection) exclude testimony based on an improper basis

5) An opinion as to sanity requires:

a) The witness is an intimate acquaintance

b) The witness is a subscribing witness to a writing in dispute, signed by the person whose sanity is in question

c) The witness is qualified to testify in the form of an opinion

CA Evidence

Expert Opinion Testimony

CA and Federal similar

Expert opinion testimony is limited to such opinion as is:

1) Related to subject beyond common knowledge

2) Based on a matter perceived or personally known to a witness

3) Matter reasonably relied upon by experts

4) May be based on infomration not in evidence

CA Evidence

Use if Scientific Procedures by Experts

CA is a Frye state (FRE is Daubert)

Generally:

1) The proponent must persuade the judge that the scientific principle or technique has been "sufficiently established to have gained general acceptance in the particular field in which it belongs"

2) General acceptance in the field is required, not just reasonable reliace

3) If after the hearing it is not clear to the judge of general acceptance in the scientific community, the judge should exclude the expert evidence

Criminal Cases

1) Expert may not testify as to mental state constituting an element or a defense (only the jury can determine whether the accused possessed the requisit mental state)

2) An expert may testify about battered women's syndrome, including the victim's perceived need to kill in self-defense

CA Evidence

Presumption and Inference

Presumption: an assumption of fact that the law requires to be made from another fact or group of facts

- the established facts are the basic facts and the presumed facts are the ones that are required to be found upon establishment of the basic facts

Inference: a deduction of fact hat may be logically and reasonably drawn from the basic facts - not required

CA Evidence

Rebuttable Presumptions

A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption

Every rebuttable presumption is either:

1) A presumption affecting the burden of production (Thayer)

2) A presumption affecting the burden of proof (Morgan)

CA Evidence

Rebuttable Presumptions: Thayer

The "bursting bubble presumptions" ipose on the party against whom the presumption is directed the burden of going forward with evidence to rebut or meet the presumption

- money delivered is presumed to have been due

- obligation delivered to debtor presumed paid

- obligation possessed by creditor presumed unpaid

- things in a person's possession presumed owned by him

- judgment is presumed to correctly determine rights of parties

- writing presumed to be truly dated

- letter correctly addressed and mailed presumed to have ben received

- deed or will presumed authentic, if

- at least 30 years old

- no suspicion concerning authenticity

- found in likely place

- generally treatd as authentic

CA Evidence

Rebuttable Presumptions: Morgan

Intended to further some public policy over and above facilitating legal proceedings and shift the burden of persuasion (proof)

- owner of legal title presumed to be full owner

- ceremonial marriage presumed valid

- official duty presumed properly performed

- person not heard from in 5 years presumed dead

- unlawful intent presumed from doing an unlawful act

Effect is to make the other party prove the nonexistance of the presumed fact

CA Evidence

Burden of Proof (definition)

The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court

Also called the Burden of Persuasion

CA Evidence

Burden of Producing Evidence

The obligation of a party to intiduce evidence sufficient to avoid a ruling against him on the issue

This is a lower standard than the standard by which the essential facts will ultimately have to be proved, but requires the judge to deny a motion for a directed verdict and allow the evidfence to go to the jury if the judge concludes that a reasonable jury could fund the required facts existed from the other party's evidence if believed

CA Evidence

Standards of Proof

1. Preponderance of the Evidence

2. Clear and Convincing Evidene

3. Beyond a Reasonable Doubt

The court must instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidenve, by clear and convincing proof, or by proof beyond a reaosnable doubt.

CA Evidenvce

Mode and Order

A trial judge in CA generally has discretion to regulate the manner and order of proof

Order of examination of witnesses:

1. Direct Examination

2. Cross-examination

3. Redirect examination

4. Recross examination

Judges may permit leading questions to be asked of child witnesses under 10 in prosecutions for various forms of child abuse

An argumentative question (starts with "Don't you know that . . . ") is inadmissibe even on cross examination

CA Evidence

Witness Credibility

CA rules go beyond Federal - CA has a non-exclusive list of mattres that the finder of fact can consider in assessing the credibility of witnesses.

Court or jury may consider any matter that has any tendency to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to:

- demeanor

- character

- extend of his capacity to preceive, recollect, or communicate any matter testified about

- the extent of his opportunity to perceive any matter testified about

- honesty or veracity

- bias, interest, or other motive

- statement he previously made that is consistent or inconsistent

- existence or nonexistence of any fact testified to

- attitude toward the action

- admission of truthfulness

CA Evidence

Impeachment (Generally)

Similar to Federal

Allows the credibility of a witness to be attached by either party, including the party that called the witness

In Civil cases, can attach two ways: 1) reputation or opinion evidence inpugning the witness's character for honesty or veracity; or 2) evidence of a felony conviction

Evidence of traits of the witness's character other than honesty or veracity is inadmissible to attack or support the credibility of a witness

CA Evidence

Impeachment by Prior Inconsistent Statements

CA and Federal similar in that a witness's credibility may be impeached by evidence that the witness has made statements that are inconsistent with the witness's testimony at the trial and rejects the common law requirement that a party confront the witness with the prior inconsistent statement before offering extrinsic evidence of the statement.

CA explicitly gives the impeaching party the right to offer extrinsic evidence of the prior statement so long as the witness who is impeached may be recalled by the opponent before the evidence is closed.

CA Evidence

Rehabilitation by Prior Consistent Statements

CA permits a prior consistent statement to support the witness's credibility if it is offered after:

1) evidence of a prior inconsistent statement has been admitted for the purpose of attacking his credibility, and the prior consistent statement was made before the alleged inconsistent statement; or

2) an express or implied charge has been made that the witness's testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the consistent statement was made before the bias or improper motive is alleged to have arisen

Prior consistent statements that are admissible may also be received for the truth of the matter asserted under an exception to the hearsay rule

- Under Federal, a prior consistent statement may be received only to rebut a charge of recent fabrication or improper influence

- Under CA, the prior consistent statement can be received only if it was made before the alleged bias or improper motive arose

CA Evidence

Impeachment by Prior Bad Acts

CA rejects the use of prior bad acts as a method of impeachment

Civil: prohibited to use specific instances of a witness's conduct to prove a character trait to attack or support the credibility of a witness

Criminal: the Right-to-Truth-in-Evidence provision of Proposition 8 gives parties to a criminal procedings in CA the constitutional right not to have relevant evidence excluded and makes such evidence admissible unless excluded by the judge b/c the prejudicial effect outweighs the probative value

CA Evidence

Impeachment by Sexual Behavior

Federal: does not permit the use of a victim's sexual habits or behavior to be used to impeach the victim as a witness

CA: permits the use in criminal and civil cases, of a complainant's or plaintiff's sexual conduct as evidence to attack the credibility of the victim as a witness in a criminal prosecution for sexual assault or a sexual harassment, batter, or assault in a civil lawsuit

CA: Before the D may offer evidence of the P's sexual conduct to atack the P's credibility, the D must file a motion with an offer of proof.

CA Evidence

Impeachment by Prior Conviction

CA: allows impeachment by prior felony convictions; impeachment by misdemeanors is not allowed

Unlike Federal, admissibility is not expressly subject to any specific balancing tests

The conviction myst involve moral turpitude, "a readiness to do evil"

Court still has discretion to exclude if prejudice substantially outweighs probative value

CA Evidence

Impeachment by Reputation or Opinion Regarding Veracity

Civil case: permits a party to impeach the creidibility of a witness by evidence impugning the witness's character for honesty or veracity

- Evidence of the witness's good character is inadmissible unless the witness's credibility has first been attacked by evidence of his bad character, but when it has, a party may only rehabilitate the witness by opinion or reputation evidenc supporting the witness's character for honesty or veracity

Criminal cases: under Proposition 8, a criminal D who takes the stand is entitled to offer good character evidence of his honesty and veracity even if the prosecution has not first attacked the D's character as a witness

- Proposition 8 allows the use of specific acts (other than convictions) to prove a witness's character for veracity or lack thereof

- Speciic instances of honesty or dishonesty are probative of a witness's character for honesty or dishonesty, so such acts are now admissible under Proposition 8

CA Evidence

Lie Detectors

The results of a polygraph exam, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph exam, may not be admitted into evidence to impeach or support the credibility of a witness in any criminal proceeding unless all parties stipulate to the admission of such results.

Nothing in this section excludes from evidence statements made during a polygrpah that are otherwise admissible

CA Evidence

Evidence of Character to Prove Conduct

Generally similar to Federal

Nothing in CA code prohibits admission of evidence that a pwerson comitted a crime, civil wrong, or other act when relevant to prove some fact (MIAMI KOPPS) other than his disposition to commit such an act

In CA, where admissible, the use of character evidence, whether in reputation, opinion or specific acts, is subject to discretionary exclusion

CA Evidence

Evidence of Habit or Custom

CA: admissible to prove conduct on a specified occasion in conformity with the habit or custom

Federal: Similar but includes the routine practice of an organization, and states that evidence of habit or "routine practice" is admissible whether corroborated or not and regardless of the presence of eyewitnesses

CA Evidence

Offers of Compromise and Plea Negotiations

Similar to Fed, CA code excludes as evidence to prove liabiltiy both offers to compromise and any discussions surrounding the offers

- CA code excludes such offers whether made out of a sense of potential liability or from humanitarian motives

CA code does not affect the admissibility of the following:

1) partial satisfaction of an asserted claim or demand without questioning its validity when such evidence is offered to prove the validity of the claim; or

2) a debtor's payment or promise to pay all or a part of the preexisting debt when such evidence is offered to prove the creation of a new duty on his part or a revival of the preexisting duty

CA provides that evidence that a person has accepted, offered or promised to accept money or other thing, act or service in satisfaction of a claim, as well as any conduct or statement in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it

CA Evidence

Privileges: Absolute Privileges

Also called "true privileges" - Protect either a confidential relationship or confidential communications and are subject only to waiver and limited exceptions

Include the following:

- attorney-client

- doctor-patient

- husband-wife

- psychotherapist-patient

- clergy-penitent

- victim-counselor

CA Evidence

Privileges: Qualified Privileges

Subject to balancing by the trial judge to determine whether the party seeking to break the privilege has shown that the need for the information outweighs the policy concerns behind the privilege

In CA, informational privileges subject to such balancing include:

- trade secrets

- the identity of confidential informants

- media shield laws

CA Evidence

Attorney-Client Privilege

- CA has a statutory attorney-client privilege

- a confidential communication betwen client lawyer means information transmitted between a client and his lawyer in the course of that relatinoship and in confidence

- includes a legal opinion formed and the advice given by the lawyer

- the privilege is testimonial and evidentiary in nature and will not necessarily block use of info disclosed by the lawyer in pre-trial or pre-indictment proceedings

- no privilege if disclosure believed reasonably necessary to prevent a criminal act, death or substantial bodily harm

CA Evidence

Writings and Other Recordings:

Requirements of Original

CA has abrogated the Best Evidence Rule, which previously required proof of the contents of a writing by the original or a duplicate

Content of a writing may be proved by an otherwise admissible original, but also by otherwise admissible secondary evidence

CA does not require proof that the original has been lost or destroyed or otherwise is unavilable

CA Evidence

 Authentication (generally)

Authentication of a writing means:

1) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is; or

2) the establishment of such facts by any other means provided by law

The party producing a writing as genuine that has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or apparent alteration

CA Evidence

Authentication Requirements

CA requires authentication before the writing may be received into evidence or before secondary evidence of its contents may be received - no detail in CA code like in Federal Rules

Federal Rules give extensive examples of methods of authentication and self-authentication of documents and other records

CA Evidence

Authenticity - Presumptions

Presumptions regarding acknowledged writings and official writings that affect the burden of producing evidence on the issue of authentication.

1) A certificate of acknowledgement of a writing (other than a will) is prima facie evidence of the facts recited in teh certificate and hte genuineness of the signature of each person by whom the writing purports to have ben signed; and

2) An official seal (including a notary public) is presumed to be genuine and its use authorized

CA Evidence

Authentication of a Deed

A deed or will or other writing purporting to create, terminate, or affect an interest in real or personal property is presumed to be authentic if:

1) it is at least 30 years old;

2) it is in such condition as to create no suspicion concernig its authenticity;

3) it was kept or found in a place where such writing, if authentic, would likely be kept or found; and

4) it has been generally acted upon as authentic by persons having an interest in the matter

CA Evidence

Requirements of a Writing

Except as provided by statute, such as the Statute of Wills, the testimony of a subscribing witness is not required to authenticate a writing

CA Evidence

Authentication of a Signature

When genuineness of a signature is at issue, it may be authenticated, as under the Federal Rules, by:

1) admission of the signer

2) a handwriting expert;

3) a person familiar with hte signer's handwriting; or

4) a comparison made by the trier of fact with handwriting, which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or otherwise proved to be genuine to the satisfaction of the court

CA Evidence

 Hearsay: Admission of Hearsay

In CA, most preliminary fact questions regarding the admission of hearsay statements, including whether the statement qualifies for an exception, are decided by Section 405 of the Evidence Code

The proponent bears the burden of satisfying the judge that circumstances justifying the admission of out-of-court statements have been demonstrated

When a hearsay statement is offered against a criminal defendant, its admissibility must be judged under state and federal constitutional standards

CA Evidence

Hearsay: Definition and Parameters

CA/FRE: includes non-verbal conduct intended to be an assertion

- CA: burden lies on the proponent to prove the conduct was intended as an assertion

- FRE: the objecting party has the burden of proving the evidence is hearsay because intended as an assertion

FRE: no limitations on the admission or use of the statement provided the declarant made the statement after perceiving the person and is subject to cross-examination concerning the statement

CA: additional limitations

- statement made at a time when the crime or other occurrance was fresh in the witness' memory

- evidence of the statement can only be offered after the witness confirms that the made the ID and that it was a true reflection of his opinion at that time

CA: an authorized admission is one made by a person authorized by the party to make the statement "for him" concerning the subject matter of the statement - therefore statements made by an agent to the party are beyond the definition

CA Evidence

Hearsay: Non-Hearsay Statements by Conspirator

The major difference between CA and FRE is the approach to admissions of coconspirators standard in proving the preliminary or foundational facts and the kind of evidence that can be offered to satisfy the standard:

In CA, a sufficiency standard aplies to the admissions of coconspirators, therefore, there must be admissible evidence sufficient to sustain a finding of the preliminary facts that:

1) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong in furtherance of the objective of the conspiracy

2) the statement was made prior to or during the time that the party was participating in that conspiracy

The proponent in CA may not offer the coconspirator's hearsay declaration as evidence of the foundational requirements. Instead, there must be independent proof of the existence of the conspiracy

A federal judge can consider the coconspirator's declaration in determining whether the prosecution has proved the conspiracy and the accused's participation, although the judge may not rely on the coconspirator's statement alone to find the preliminary facts

CA Evidence

Hearsay Exception: Present Sense Impressions/Excited Utterances

CA: Contemporaneous statement - hearsay exception - offered to explain, qualify, or make understandable conduct of the declarant and which were made while the declarant was engaged in such conduct

- statements made reflecting the declarant's state of mind regarding his own conduct are not hearsay under FRE

FRE: present sense impressions describe or explain an event or condition made while the declarant was perceiving the event

CA: Spontaneous statements are similar to FRE's excited utterances

CA Evidence

Hearsay Exception: Statements of Mental, Emotional, or Physical Condition

FRE: hearsay exception permitting a statemetn of the declarant's then-existing state of mind, emotion, sensation, or physical condition, not including statement of memory or belief unless it relates to the execution, revocation, identification, or terms of the declarant's will.

CA: simlar exception for declarants where a then-existing state of mind (excluding memory or belief) when:

1) when the evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time

2) the evidence is offered to prove or explain acts or conduct of hte declarant

CA Evidence

Hearsay Exception: Business Records

CA/FRE Differences

1) FRE: record was created as part of the regular practice of the business

CA: record created in the regular course of busines

2) FRE: an opinion or diagnosis can qualify as an admissible entry as part of a business record if such opinions would be admissible through the hearsay declarant as a witness

CA: does not contain any references to opinions or diagnosis in this context

3) FRE: opponent bears the burden of persuading the judge that the record is untrustworthy

CA: places hte burden on the proponent to show that the record is trustworthy based on the sources of the information and the method and time of preparation of the record

CA Evidence

Hearsay Exceptions: Public Records

CA differences to the FRE

Admissible to prove the event if all of the following apply:

1) writing made within the scope of duty of a public employee

2) writing made at or near the time of the act, condition or event

3) the sources of information and method and time of preparation indicate its trustworthiness

Trustworthiness is part of the proponent's burden

The person making hte entry, such as a clerk, does not have to have first hand knowledge of the information contained in the record

CA Evidence

Hearsay Exception: Declarations Against Interest

CA/FRE similar: provide a hearsay exception for declarations against interest if the declarant is unavailable to testify

- a declaration against interest is one where the declaration is against the declarant's pecuniary, proprietary, or penal interests

CA Difference: additional catefory for declarations against the declarant's social interest