CA Evidence Flashcards

Question

# Testimonial Evience CA Safeguards for Hypnotized Testimony (3)

Answer 1

* A witness who has undrgone hypnosis to restore memory is only competent to testify abotu matters they recalled and related to others prior to hypnosis. * In **Criminal Cases**, CEC has additional requirements: (1) Substance of prehypnotic memory must have been preserved in writing/recording prior to hypnosis (2) Hypnosis must have been video recorded (3) Hypnosis must have been done outside presence of law enforcement, prosecution, defense

Answer 2

**FRE**: if witness refreshed memory **while** on stand, adverse party is **entitled** to have writing produced at trial and to use and introduce relevant portions. But if witness refreshed memory **before** trial, it is within **court's discretion** to require production. **CEC**: Immaterial whether refreshing done before or during trial. If oppponent asks for writing to be produced, proponent **MUST** produce it (unless they dont have it and cannot obtain by subpoena or other means)

Answer 3

**FRE**: **Daubert Standard**: Court can consider **various factors** when determining reliability of scientific and non-scientific opinions (whether expert's theory/methodology tested? subject to peer review/publication? Potential error rate? Existence and maintanence of standards controlling operation? Generally accepted in relevant field?) **CEC**: **Kelly-Frye general accpetance standard**: Reliability of **SCIENTIFIC** opinions is determined by a **single factor**: the opinion must be based on principles that are generally accepted by experts in the field (Not changed by Prop. 8). Does not apply to non-scientific opinions and medical opinions, the reliability of which is based on facts and circumstances of the case

Answer 4

**FRE**: Once established as an accepted authority in field, a learned treatise that is relied upon by an expert or called to an expert's attention on cross-examination is admissible to prove any facts contained in the treatise. **CEC**: a learned treatise is admissible to show **facts of general notoriety or interest** found in published maps/charts/book of history/science, art. This hearsay exception is very narroow and almost never applicable. Thus, a learned treatise is usually admissible only on cross-examination of an expert witness.

Answer 5

**FRE**: if a party makes a motion to sequester a witness, judge MUST grant the motion, but must not exclude witnesses in exempted categories **CEC**: Judge has DISCRETION to grant/deny a pary's motion to sequester, but must not exclude witnesses in exempted categories. | Sequester means to isolate.

Answer 6

**FRE**: Under federal law, w/ certain exceptions, a party is not permitted to bolster the testimony of their witness until the witness has been impeached **CEC**: The CA rule is the same in CIVIL cases. But in CRIMINAL cases, Propr 8 allows both the prosecutor and the defendant to bolster a witness's credibility before it has been attacked. ## Footnote Prop 8 makes all relevant evidence admissible in a criminal case.

Answer 7

**FRE**: A prior inconsistent statement is not hearsay if offered only to impeach. However, there is a hearsay problem when the statement is offered for the truth of the facts asserted. FRE recognizes hearsay exlcusion for certain prior inconsistent statement was given under oath at a tiral or deposition, it is not hearsay. **CEC**: In CA there are NO **exclusions** as to the definition of hearsay. In CA there are ONLY **exceptions**. Prior inconsistent staements of a testifying witness are categorized as a hearsay exception, not an exclusion. The exception extends to ALL prior inconsistent statements, even if they were NOT made under oath.

Answer 8

(1) What types of convictions are admissible for impeachment purposes? (2) Does the court have discretion to exclude an otherwise admissible conviction?

Answer 9

**FRE**: Convictions for felonies involving dishonesty or false statement are admissible. Convictions for felonies NOT involving dishonesty or false statement are also admissible, but the court has discretion to exclude them. The balancing test depends on who the witness is; for most witnesses, the court uses the 403 balancing test (evidence is admissible unless unfair prejudice substantially outweighs probative value), but a different balancing test is used in a criminal case where the witness is the accused - balancing test is skewed against prosecutor. Prosecutor has the burden of showing probative value outweighs unfair prejudice. **CEC**: In CA all felonies involving **moral turpitude** are admissible, but the court has discretion to exclude them nder CEC 352. Felonies NOT involiving moral turpitude are INDADMISSIBLE. (Prop 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment)

Answer 10

Referes to crimes of lying, violence (but not simple assault), theft, extreme recklessness, or sexual miscoduct. Crimes consisting of merely negligent or unintetional acts are not crimes of moral turpitude.

Answer 11

CA Supreme Court has ruled on the form of impeachment w/ prior felony convictions. In **civil cases**, the witness may only be impeached w/ the fact that they have been **convicted** of the felony. But in **criminal cases**, Prop 8 makes evidence of the circumstances underlying the crime admissible to impeach the witness if the proponent demonstrates that the evidence has **any tendency** to disprove credibility.

Answer 12

**FRE**: All convictions for misdemeanors involving dishonesty or false statement are admissible. The court has no discretion to exclude these convictions for crimes of dishonesty or false statement. If the misdemeanor is not a crime of lying, it's inadmissible to impeach. **CEC**: In CA, the law depends whether it is in a civil or criminal case. The CEC provides that misdemeanor convictions are inadmissible. So, misdeameanor convictions are **inadmissible** in civil cases. However, because of Prop 8, convictions for misdemeanors involving **moral turpitude** can be admitted in criminal cases, subject to the court's balancing of probative value versus unfair prejudice under CEC 352. Prop 8 only applies to CRIMINAL cases.

Answer 13

(1) Trying to impeach a witness w/ a misdemeanor; (2) Evidence Code say you cannot do that; (3) BUT, this is a criminal case; (4) Prop 8 applies - all relevant evidence is admissible and any conviction, felony or misdemeanor involving an act of moral turpitude is relevant to impeach a witness; (5) Subject to the court's balancing of probative value (especially if Defendant is testifying as a witness)

Answer 14

**FRE**: If a conviction qualifies for impeachment but more than 10 years have passed since hte date of conviciton or release from prison, it's INADMISSIBLE unless the court determines that the convcition's probative value substantially outweighs its prejudicial effect. **CEC**: CA does not have a specific rule for old convictions. However, CA courts always have discretion to exclude a conviction offered for impeachment under CEC 352, and this permits consideration of any factor bearing on probative value, including the age of the conviction.

Answer 15

(1) To be admissible, the conviction must always be for a crime involving moral turpitude; (2) Misdemeanor convictions are admissible in criminal cases only; and (3) The Court always has discretion to exclude a aqualifying conviction CEC 352 (burden on the objecting party)

Answer 16

**FRE**: A witness's bad acts involving untruthfulness can be admissible even if those facts did not lead to a conviction. The impeachment must be done on cross-examination only, extrinsic evidence of the bad act is admissible, and the evidence is subject to Rule 403 balancing. (Only type of misconduct evidence that can be used to impeach a witness is evidence of LIES - not theft, not other bad stuff) **CEC**: In CA, impeachment w/ bad acts that did not lead to a conviction is not permitted. However, if it's a criminal case, Prop 8 makes acts of moral turpitude admissible for impeachment. When admissible, both cross-examination and extrinsic evidence are permitted, subject to balancing under CEC 352. * In CA civil cases, impeachment w/ bad acts is not permitted.

Answer 17

**FRE**: A party can rehabilitate an impeached witness by introducing the witness's prior consisten statement if: (1) the testimony of the witness was attacked by a charge that the witness is lying or exaggerating because of some improper motive, if the prior consistent statement was made before the motive to lie arose; **or** (2) the witness was impeached on some other ground, and the prior consistent statement tends to rehabilitate the witness. - Prior consistent statement is admissible as an "exclusion", so it's NOT hearsay. **CEC**: In CA, the same w/ respect to category (1) in FRE, but more specific w/ respect to category (2). A prior consistent statement is admissible if the witness was impeached w/ a **prior inconsistent statement**, and the **prior consistent statement** was made **before** the prior inconsistent statement. - Prior consistent statement is admissible then it is hearsay but within an "exception". In CA, no such thing as hearsay exclusions.

Answer 18

In CA, hearsay law is exempt from coverage of Prop. 8. This means that, even in a criminal case, the usual rules of evidence apply. * There are no hearsay exclusions in CA - only exceptions.

Answer 19

Statement of a party, or by someone whose statement is attributable to the party, is admissible when offered against that party. **FRE**: Under Federal Rules, an opposing party's statement is excluded from the definition of hearsay; it is NOT hearsay under Federal. **CEC**: In CA, an opposing party's statement is called admissions. Admissions are considered hearsay in CA, but are admissible under a hearsay exception.

Answer 20

Statement of a person authorized by a party to speak on its behalf is admissible against the party. **FRE**: Under Federal Rules, a statement of a party's agent or employee is admissible as an opposing party's statement if the statement: (1) concerned any matter within the scope of the agency/employment, and (2) was made during the existence of the agency or employment relationship. **CEC**: In CA, there is no equivalent provision. However, in civil cases a statement by a party's employee is considered an admission by the employer where the *negligent conduct of the employee* is the basis for the employer's *liability* under **respondeat superior**. Employer is responsible for the employee's words only if they are also responsible in tort law because of that employee's conduct.

Answer 21

Statements by the deceased are admissible against the Plaintiff.

Answer 22

Statements by the child are admissible against the parent.

Answer 23

Statements made by the predecessor in interest during the time they were supposedly the holder of the right or title are admissible against the party.

Answer 24

Statement made by the decedent is admissible **against** the estate, provided the statement: (1) Concerned a matter within the decedent's personal knowledge; (2) was made after the decedent had recently perceived the matter; **and** (3) was made while the deceden't recollection was clear.

Answer 25

**FRE**: A statement of identification of a person as someone the witness perceived earlier is not hearsay. **CEC**: A witness's statements of identification are categorized as an **exception** to the hearsay rule (still considered hearsay). The CA exception imposes additional requirements: (1) Identification must have been of a **person who participated in a crime or other occurrence**; (2) Witness must have made the identification while their **memory was fresh**; and (3) Witness must confirm in court that they made the identification and that it truly **reflected their opinion at the time**.

Answer 26

Prior inconsistent statements, both in Federal and CA are NOT hearsay when offered only for impeachment purpoes. However, when they are offered to prove the facts asserted in the statement, there is a hearsay problem. **FRE**: A witness's prior inconsistent statement is excluded from the definition of hearsay if it was **made under oath at a prior proceeding**. Otherwise, a witness's prior inconsistent statement is hearsay and inadmissible to prove the fact asserted. **CEC**: A witness's prior inconsistent statement falls under an exception. This exception extends to ALL prior inconsistent statements, regardless of whether they were made under oath.

Answer 27

Under federal and CA law, a prior consistent statement that is admissible to rehabilitate a witness is also admissible as substantive evidence of the truth of its contents. (Statements made before the alleged bribe/inconsistent statement made by the witness - timing is key in both FRE and CEC!) **FRE**: A witness's prior consistent statement is not hearsay - within an exclusion. **CEC**: A witness's prior consistent statement is categorized as a hearsay exception.

Answer 28

Federal and CA law recognize most of the same grounds for unavailability: (1) Death or physical or mental infirmity; (2) Privilege; (3) Refusal to testify despire a court order; and (4) Absence and inability of the proponent to procure attendance by process or other reasonable means. **FRE**: A declarant also is unavailable if their **memory fails** on the subject matter of their statement. **CEC**: In CA, lack of memory on topic does NOT qualify, unless witness is shown to be suffering total memory loss. CA courts have also held that **fear** of testifying can be considered a mental infirmity that prevents the declarant from testifying.

Answer 29

**FRE**: A statement by an unavailable declarant is admissible if, at the time it was made, it was against the declarant's pecuniary (money), proprietary (property), or penal (criminal) interest. In a criminal case, if the statement woudl have subjected the declarant to criminal liability, the proponent must offer corroborating circumstances showing that the declarant's statement is trustworth. **CEC**: In CA, the exception is broader in (2) respects: (1) it does not include the corroboration requirement for statements subjecting the declarant to criminal liability; (2) It also applies to statements agaisnt the declarant's social interest that would risk makign the declarant and object of "hatred, ridicule, or social disgrage in the community".

Answer 30

Under federal and CA law, testimony given under oath at trial, hearing, or deposition by now-unavailable declarant is **admissbile** if the party against whom the testimony is now being offered had an **opportunity and similar motive** to develop the declarant's testimony at the prior proceeding by direct, cross-examination, or redirect examination. **Opportunity and similar motive** requirement means that the party against whom the testimony is now being offered must have been a party in the former action. HOWEVER, where this party was NOT a party in the former action, such statements may still be admitted under the former testimony exception in **CIVIL** cases, but federal and CA law differ on what is required: **FRE**: Only in civil cases, if the party against whom the testimony is being offered was not a party in the former action, the statement is still admissible if the party's **predecessor in interest** (person in a privity relationship) was a party in the former action. **CEC**: Only in civil cases, can admit former testimony in today's case against a party who was not present in the first case, so long as there was a party in the first case who had a **similar interest** to the interest of the party in today's civil action.

Answer 31

Unavailable declarant's former testimony also admissible if being offered against a party who offered it in evidence on their **own behalf** at the prior proceeding, or against that person's **successor in interest**. The "similar motive" requirement does not apply in this situation.

Answer 32

Under CA civil procedure rules, apply when the former testimony is from a **deposition in the same civil case**. The deposition testimony is **admissible for all purposes** if the deponent: (1) Is **unavailable** to testify at trial; **or** (2) Lives more than **150 miles** from the courthouse.

Answer 33

**FRE**: Under FRE, in a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if: (1) Declarant believed their death was imminent (they need not have died); and (2) Statement concerned the cause or circumstances of what the declarant believed to be their impending death. **CEC**: Under CA, exception applies in: (1) All criminal and civil cases; and (2) Declarant must have died as a result of what happened.

Answer 34

Under FRE and CEC, the statement of an unavailable declarant is admissible in any type of case when offered agaisnt a party who has engaged or acquiesced in wrongdoing that intentionally caused the declarant to be unavailable to testify. **CEC**: CA recognizes this exception, and specifically provides that the judge has discretion to exclude the statement if it appears untrustworthy.

Answer 35

Statement of kidnapped or murdered declarant is admissible if: (1) Prosecution for serious felony; (2) Unavailability caused or aided by defendant; (3) For purpose of prevent defendant's arrest or prosecution (rather than preventing their testimony at trial). **NOTE**: For this exception to apply: (1) Statement must have been memorialized by law enforcement in a tape recording or in a writing signed by the declarant; (2) Statement must be corroborated by other evidence that implicates the defendant in the charged crime.

Answer 36

Statements describing the infliction or threat of physical injury.

Answer 37

Statements of past physical or emotional condition or state of mind, when at issue in the case.

Answer 38

**FRE**: Under FRE, a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition, is admissible as a present sense impression. **CEC**: Under CA, admissible only where statement explains declarant's own conduct and made while the declarant was engaged in the conduct.

Answer 39

In CA, statements made by an **unavailable declarant** that describes, narrates, or explains the infliction or threat of physcial injury on the declarant is admissible if the statement: (1) Was made at or near time of the infliction or threat; (2) Was neither (a) In writing, (b) recorded, or (c) made to a law enforcement official or medical personnel; and (3) Was made under circumstances that indicate trustworthiness. **Note**: This hearsay exception requires the declarant to be unavailable, watch out for confrontation issues. Confrontation Clause applies to testimonial hearsay statements, some statements to the police are testimonial in nature.

Answer 40

Under FRE and CA, a statement relating to a startling event, made while the declarant was under the stress of the excitement from the event, is admissible. **FRE**: In FRE, the statement is called **"excited uttereances"**. **CEC**: Under CA, the statement is called **"spontaneous statements"**.

Answer 41

Under FRE and CA, a statement of the declarant's then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible. However, a statement of memory or belief is not admissible to prove the fact remembered or believed. **CEC**: Under CA, the trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness.

Answer 42

**FRE**: A statement that describes a person's medical history, part or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for and was reasonably pertinent to medical diagnosis treatment. **CEC**: (CA is much narrower) Hearsay exception only applies where: (1) the declarant is a **minor** at the time of the proceedings and was under **age 12** at the time of their statement; **and** (2) their statement was made for the purpose of medical diagnosis or treatment and described an act or attempted act of child abuse or neglect.

Answer 43

In CA, a statement of an unavailable declarant's past physical condition, emotional condition, or state of mind (including their motive, intent, or plan) is admissible to prove that condition if it is an issue in the case. * There is no requirement that the statement be made for medical purposes. The trial judge has specific discretion to exclude statements that are made under circumstantces that indicate a lack of trustworthiness. **NOTE**: Statements that do not qualify under "present state of mind" or "statements for medical diagnosis" exception in CA might be admissible under this exception - but, the declarant must be UNAVAILABLE.

Answer 44

**FRE**: Under FRE, a writing or record made as a memorandum of any act, event, condition, opinion or diagnosis is admissible in evidence as proof of that occurrence if the element of the exception are met (made in the regular course of business; made at or near the time of the occurrence) **CEC**: Under CA, business records exception does NOT refer to opinions or diagnoses, but courts still will admit **simple opinions** and **simple diagnoses**.

Answer 45

**FRE**: Under FRE, a business record can be authenticated by a records custodian or other qualified witness confirming that the record meets the elements of the business records exception. This can be accomplished by either: (1) Live testimony; **or** (2) Written Certification. **CEC**: Under CA, a custodian or other qualified witness must testify as to the identity of the business record and its creation; a written certification is not sufficient.

Answer 46

**FRE**: Under FRE, the record of a public office is admissible if it is within any of the following (3) categories: (1) Record describes the activities of the office; (2) Record describes matters observed pursuant to a duty imposed by law (not including police observations in a criminal case); and (3) Record contains factual finding resulting from an investigation that was authorized by law. * In a criminal case, the prosecution cannot offer a record falling within category (3). Additionally, the record msut have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event. **CEC**: Under CA, a record of an act, condition, or event made by a public employee is admissible if: (1) Making the record was within the scope of the public employee's duties; (2) Record was made at or near the tiem of the matters described; and (3) Source of information and the time of preparation indicate trustworthiness. **NOTE**: There's no singling out of police records - BUT - may be subject to the Confrontation Clause (testimonial evidence can include written evidence prepared by representatives of law enforcement).

Answer 47

**FRE**: Under FRE, a felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment. However, when offered by the prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. **CEC**: Under CA, exception for convictions applies only in civil cases. Prop. 8 doesn't change this hearsay law. However, a certified copy of a judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.

Answer 48

**FRE**: Under FRE, prior civil judgments are generally inadmissible, with certain statutory exceptions. Example - a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land. **CEC**: Under CA, there are (2) exceptions for civil judgments: * A party may offer a final judgment against themselves when they sue another for indemnification, or to enforce a warranty, or to recover for breach of warranty; * Where a third party's liability or obligation is at issue in a civil case a final judgment aganst that third party is admissible. (If Defendant in the case had assumed a 3d party's liabilities, a judgment against that 3d party would be admissible agaisnt that defendant).

Answer 49

Statements of child describing acts of child abuse or neglect are admissible under CA's "medical diagnosis or treatment" exception. CA recognizes a separate exception that admits such statements even where not made for medical diagnosis or treatment, but the requirements are a bit more stringent in which this exception onl applies to: (1) Criminal cases; (2) Court must find that there are sufficient indicia of reliability; and (3) Either (a) the child must testify at trial; or (b) if the child is unavailable, there must be evidence to corroborate the child's statement. **NOTE**: Look out for Confrontation Clause issues where the child is unavailable and their statement was testimonial in nature.

Answer 50

**FRE**: Under FRE, there's a catch-all exception for particularly trustworthy and necessary hearsay statement. **CEC**: Under CA, there's no catch-all exception, but judges can create new hearsay exceptions by decisional law!! 👩🏻‍⚖️

Answer 51

A document can be authenticated by evidence that is sufficiently old, is in a condition that creates no suspicion as to authenticity, and was found in a place where such a writing would be kept. **FRE**: A document qualfies as "ancient" if it is **at least 20-years old**. * FRE hearsay exception for related documents applies to documents prepared BEFORE 1998. **CEC**: A document qualifies as "ancient" if it is **more than 30 years old**. * CA hearsay exception is the same as for authentication - document must be more than 30 years old.

Answer 52

Authentication is unneccessary for certain writings (certified public records, notarized documents, newspapers). **FRE**: Trade inscriptions and certified business records are self-authenticating documents. **CEC**: Trade inscriptions and certified business records are **NOT** self-authenticating documents.

Answer 53

When a party seeks to prove the contents of a writing, recordings, or photographs, the best evidence rule requires the party to produce the original (subject to many exceptions) **FRE**: Under FRE, best evidence rule applies, a "duplicate" is usually admissible to the same extent as the original (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Secondary evidence of the contents of the writing, such as handwritten or otherwise reconstructed copies, or oral testimony, is not admissible unless a satisfactory excuse is given for the non-production of the original. **CEC**: Under CA, the "secondary evidence rule" - duplicates and any written secondary evidence is admissible (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the orginal); and oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original. * Duplicates and any written secondary evidence of the contents of the original - such as reconstructed or handwritten copies - are all usually admissible. **NOTE**: This rule is exempt from Prop. 8 in CA, meaning, even in a criminal case, the secondary evidence rule applies.

Answer 54

**CEC**: Communications between persons in privileged relationship **presumed** confidential **FRE**: Federal courts do not recognize a presumption of confidentiality for all privileges, though it has been held that communications made between spouses for purpose of confidential marital communications are presumed to be privileged

Answer 55

**FRE & CEC** Attorney-client privilege applies to confidential communications between the attorney and client (or representatives of either) made during professional legal consultation unless waived or exception applies

Answer 56

* **FRE**: survives death of client * **CEC**: ends once estate of deceased client is distributed and executor of estate is discharged

Answer 57

* **FRE**: privilege applies to communicatiosn from a corporation's employee/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporaton. * **CEC**: privilege applies to communications from an employee/agent if: (1) Employee/Agent is a natural person to speak to the lawyer on **behalf of a corporation** in the matter (ex, corporation's in-house counsel or CEO); OR (2) Employee/Agent did something for which the corporation **may be held liable** and the corporation **instructed her to tell its lawyer** what happend ## Footnote **NOTE** *No privilege for a **mere witness** who happens to be an employee*

Answer 58

* **FRE**: (1) Multiple parties consult an attorney on a matter of common interest and communication is offered by one of these parties against another in subsequent litigation; (2) Attorney's services were sought to further a crime/fraud (3) Communication relates to alleged breach of duty between attorney and client (4) Client puts legal services at issue in the case (5) Communication is relevant to an issue between parties claiming through same deceased person **CEC**: Privilege does NOT apply where the lawyer reasonably believes that disclosure of communication is necessary to prevent a crime that is likely to result in **death** or **substantial bodily harm**.

Answer 59

* **FRE**: recognizes psychotherapist/social worker-patient privilege but NOT general physician-patient privielge * **CEC**: both privileges exist. **Physician-patient privilege** applies to a communication with a **licensed physician or someone patient reasonably thinks is a licensed physcian** for purpose of diagnosis/treatment, also applies to physican's staff serving as agent to gather info to pass to physician. **Psychotherapist-Patient Privilege** covers a wide range of mental health workers (social worker, counselor, school psychologist, mental health nurses, assistants, interns)

Answer 60

* **FRE**: Psychotherapist-Patient Privilege N/A, **CEC** for both privileges N/A: (1) Patient puts **condition in issue** (2) Professional services sought to **aid in crime or fraud**, or **escape** **capture** after crime or tort (3) Case alleges **breach of duty** between patient and psychoherapist/physician (4) Communication is relevant to an issue between parties claiming through the **same deceased** patient **Additionally in CA, following exceptions:** * **Psychotherapist privilege**: (1) Patient is dangerous (2) Patient is child crime victim (3) Psychotherapist is court-appointed * **Physician-patient privilege**: **Criminal** cases * **Both privileges**: Reporting required by law (gunshot wounds) or competency proceedings

Answer 61

Permits a witness-spouse to refuse to testify against their spouse * **FRE**: Applies to **CRIMINAL** cases only * **CEC** applies to **CRIMINAL** and **CIVIL** cases and extends to registered domestic partners. Spouse/Partner of the party may not be compelled to even take the witness stand.

Answer 62

**FRE & CEC**: Confidential marital communications privilege applies in all **CIVIL** and **CRIMINAL** cases, can be invoked by **EITHER SPOUSE**, protects confidential communications that were made **DURING MARRIAGE** CA extends to domestic partners

Answer 63

* Confidential communications between sexual assault, DV, human trafficking counselor and victim * Penitential communications between penitent and clergy member who routinely receives such communications and whose religion requires them to be kept secret (both persons hold privilege) * Official gov info or identity of informer (Judge balances public interest and need for disclosure) * Trade secrets * Voter's secret ballot * Immunity from contempt of court for a news reporter who refuses to disclose their sources

Answer 64

As under federal law, CA does not recognize accountant-client privielge

Answer 65

* Facts upon which admissibility depends * **FRE**: Judge is NOT bound by rules of evidnce, except privilege * **CEC**: Judge is bound by rules of evidence (i.e., cannot use inadmissible hearsay evidence when making preliminary determination)

Answer 66

**FRE & CEC**: Fact is appropriate for judicial notice if: (1) Generally known within court's jdx; OR (2) Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned Judicial notice of fact is **mandatory** only if a party **requests** it; if not, court has discretion to take judicial notice on their own accord CA recognizes an exception = Even if **NOT requested**, court **must** take judicial notice of matters of generalized knowledge that are universally known

Answer 67

* **FRE**: Judicially noticed facts are conclusive in **civil cases**, but NOT criminal cases. I.e., if court takes judicial notice in civil case, court will instruct jury it must accept the judicially noticed fact as conclusive. But if takes judicial notice of criminal case, court instructs jury that it may accept judicially noticed fact as conclusive, but is not required to do so * **CEC**: Judicially noticed fact is conclusive in both **criminal AND civil cases**

CA Evidence Flashcards

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