#11414 - Ca Distinctions - Evidence

California Distinctions

1. California Distinctions

   1. Pre Prop 8 (and current civil rules)

      1. Specific Acts: CEC 787

         1. No evidence of specific acts allowed in to attack/support credibility

      2. Prior Convictions: CEC 788: W’s credibility may be attacked by evidence that she has been convicted of any felony, not just crimen falsi.

         1. Beagle: CEC 352 (FRE 403) limits all past convictions. No different test for crimen falsi or old acts. Balancing factors include:

            1. How prior convction reflects on honesty

            2. The nearness/remoteness in time of prior conviction

            3. Whether same/similar conduct is charged

            4. Adverse effect of admission on D’s willingness to testify

   2. Components of Prop 8

      1. Victim’s Bill of Rights: Cal Const art I, Sec. 28

      2. Right to Truth in Evidence: Sec 28(f)(2) (Specific Acts)

         1. Victims of crime have right to truth-in-evidence – “relevant evidence shall not be excluded in any criminal proceeding…”

      3. Use of Prior convictions: Sec 28(f)(4)

      4. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.

   3. Internal Inconsistency

      1. 28(f)(2) subjects relevant evidence to 352 balancing test

      2. 28(f)(4) puts not limitation on prior felony conviction use

      3. Castro reconciles these differences:

         1. Defense argument: Not applying 352 to prior convictions violates equal protection and due process

         2. AG argument: this is what the voters wanted

         3. Court: the “nothing in this section shall…” of (f)(2) trumps the “any”/”without limitation” of (f)(4). The purpose was to eliminate cases the Antick line of cases that applied 352 too rigidly to various cateogries of prior convictions, NOT TO ELIMINATE 352 BALANCING FROM PRIOR CONVICTIONS

            1. 14th amendment right to due process requires a rational connection b/w evidentiary fact (prior conviction) and inferred fact (witness’s truthfulness)

            2. Conviction evinces “general readiness to do evil” ie, moral turpitude.

            3. Rule: only felonies that are crimes of moral turpitude are admissible to impeach

            4. Held: Possession of heroin for sale should be admitted to impeach because it evinces an intent to corrupt others

         4. Factors of Moral turpitude

            1. The “Least Adjudicated Elements” of the conviction

            2. Bird concurrence/dissent: the moral turpitude test is not workable, will lead to chaos (it has)

      4. Past Inconcistent Statements: CEC 1235

         1. FRE: PIS is admissible only as impeachment. Not admissible as substantive evidence because of hearsay problem

         2. CEC 1235: allows PIS to be considered for its truth

            1. Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770 [equivalent of FRE 613(b) – opportunity to explain/deny]

         3. Purpose

            1. Law Review Commission notes:

               1. HS dangers laregely non existent.

                  1. Decl. can be cross examined

                  2. Inconsistet statement more likely to be trut than testimony of W at trial because it was made nearer in time to the matter to which it relates & less likely to be influenced by controversy that gave rise to the litigation

                  3. ToF can observe demeanor of W as he denies/tries to explain away inconsistency…therefore ToF in as good a position to determine...