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Santa Clara University School of Law
Gillingham, CharlesGeorge

1. FRE 613 and CEC 1235
– In CA, prior inconsistent comes in for truth whether or not it was made under oath
– In FED, only comes in to impeach under 613; comes in for truth if under oath under 801(d)(1)(A)
2. FRE 609 and CEC
– In CA: broad definition of crimes used to impeach; any crime involving moral turpitude; any crime, no matter how old, can be used to impeach
– In FRE: either felony, or crime of falsehood; must be within 10-year period
3. FRE 409 and CEC
– In CA “I’m sorry” is inadmissible
– In FRE “I’m sorry” admissible
4. FRE 410/ CEC 1153
– In CA 1153 does not bar jury from hearing evidence of plea deal that fell apart
            – They are not told it was said in the process of a plea deal
            – They are told “at some prior court hearing on this date did you say x?”
            – Could come in to impeach
– In FRE
5. Dying declarations: two differences
– In CA, dying declaration can be used for any purpose
– In FED, can only be used in homicide cases and civil cases
b. – In CA, the dying declarant need not be unavailable
– In FED, dying declarant must be unavailable
6. 804(b)(3)/CEC 1230
– In CA, don’t need corroboration for statement that inculpates declarant while exculpating accused
– In FRE, need corroboration
7. 803(6)/CEC 1271
– In CA, physician must come in and testify about opinion or diagnosis
– In FED, writing can be used to establish opinion or diagnosis
8. Ancient writings
– 30 years in CA- 20 years in FED
9. CEC 1109 Prior acts of domestic violence does not exist in FRE
10. Expert testimony
            – Frye test used in CA            – Daubert test used in FED (Frye is one factor though)
11. Voluminous writings
            – In CA no summary allowed
            – In FED summary allowed
12. 803(3)/ CEC 1250-1252
1. In CA it admissible against third party “I’m going the party with Frank” = admissible against Frank
Rule 606(b): Inquiry into validity of verdict or indictment
– Juror incompetent to testify about:
            1. Any matter or statement occurring during deliberations
            2. The effect of anything upon the mind or emotions of any juror as it relates to his assent or dissent from the verdict
            3. The mental processes of the juror in connection with his assent or dissent from  the verdict
– Policy reasons
            – Freedom of deliberation
            – Finality of verdicts
            – Protection against harassment from dissatisfied litigants
– Right to impartial and competent jury: safeguards – 6th Amendment Right
            – Examination in voir dire
            – Jury observable by court, counsel, and court personnel
            – Jurors observable by each other and may report misconduct prior to reaching a     verdict
Tanner Case:
            – Drunken Jurors
            – Rule: 606(b) juror intoxication is not an “outside influence”
– Cf. CEC § 1150
            – Allows for any evidence otherwise admissible as to
                        1. Statements made
                        2. Conduct
                        3. Conditions or events
                        – Within or without the jury room that is likely to have influenced the                               verdict improperly BUT
                                    – No evidence is admissible to show the effect such conduct had                                         on any juror either influencing assent or dissent or concerning the                                             mental processes by which it was determined
Rule 401: Definition of relevant evidence
– Relevant evidence is
            – Evidence having any tendency
            – To make the existence of any fact that is of consequence to the determination    of the action
            – More probable or less probable than it would be without the evidence
                        – “A brick is not a wall”
                                    – If the particular fact in dispute is the wall, an item of evidence                                          need merely be a valid brick in that wall
– Evidence must be
            1. Material
                        – Must bear on a fact that is of consequence to the determination of the                              action”
                                    – Link between fact sought to be proved and substantive law
            2. Probative
                        – Must have a tendency to make the existence of that fact more probable or                        less probable than it would

                             – Judge does not weigh the credibility of the evidence or make a                                          finding
– Judge can:
            1. admit the evidence subject to the admission of the other piece of evidence or
            2. not allow its admission until the other piece of evidence is admitted
* The offer can be made that all offers of evidence can raise problems of conditional relevancy: “the only limit on the number of conditioning facts pertaining to each proffer is one’s imagination.”
            – When the “missing link” in the chain of inferences is obvious enough – or when  the opposing lawyer is canny enough to spot it – the judge will admit the    challenged evidence only if the proponent introduces sufficient evidence of the           conditional fact (the missing link) that the jury could reasonably find by a preponderance of the evidence that the link is established.
Rule 403: Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
            1. Although relevant
                        – 403 permits exclusion of otherwise relevant evidence
            2. Evidence may be excluded
                        – Trial judge’s discretion and reviewable on appeal only for abuse of                                   discretion
            3. If probative value is substantially outweighed by
                        – Errs in favor of allowing evidence
            4. The danger of unfair prejudice or
                        – Relevant evidence is inherently prejudicial, it is only unfair prejudice,                               substantially outweighing probative value, which permits exclusion
                        – Unfair = an undue tendency to suggest decision on an improper basis,                             commonly, though not necessarily, an emotional one