CEC vs. FRE
Relevance:


FRE 401: any tendency to make existence of fact of consequence more or less probable
CEC 210: fact of consequence or credibility
Unfair Prejudice:

CEC 352 (first manifestation of this rule); FRE 403
Prior Inconsistent Statements:

FRE 802(d)(1)(A); CEC 1235, 770 (prior statement needn’t be under oath)
Prior Consistent Statements:

FRE 802(d)(1)(B); CEC 791, 1236 (explicit “before the bias” requirement)
Tender Years Exception:

CEC 1360: hearsay admissible if: (1) criminal case; (2) child under 12 at time of statement; (3) statement
describes sexual abuse; (4) judge determines statement is reliable
Prior ID:

FRE 802(d)(1)(C); CEC 1238 (must be made when fresh in memory; must first testify that he made the ID
and it was a true reflection of opinion at the time)
Authorized Admissions:

FRE 801(d)(2)(C); CEC 1222 (easier in that subject to 104(b); harder in that statement itself can’t be
offered as evidence of authority)
Co-Conspirator Admissions:

FRE 801(d)(2)(E); CEC 1223 (easier in that subject to 104(b); harder in that statement itself can’t be
offered as evidence of authority)
Present Sense Impressions:

FRE 803(1); CEC has no equivalent
Excited Utterances:

FRE 803(2); CEC 1240(b) (requires spontaneity)
Present State of Mind:

FRE 803(3); CEC 1251 (statement of past state of mind admissible if declarant unavailable and evidence is
offered to prove prior state of mind when it is itself an issue of fact) subject to CEC 1252 (“evidence of a
statement is inadmissible under this article if the statement was made under circumstances such as to
indicate its lack of trustworthiness”)
Medical Diagnosis/Treatment:

FRE 803(4); no CEC equivalent
Past Recollection Recorded:

FRE 803(5); CEC 1237
Business Records:

FRE 803(6) & (7) (party seeking to exclude has burden of establishing lack of trustworthiness); CEC 156067 (burden of establishing trustworthiness on offering party)
Public Records:

FRE 803(8); CEC 1280 (police reports admissible in criminal trial unless court finds them unreliable;
investigative reports can be admissible against defendant in criminal trial, not just against the
government)
Prior Testimony (unavailable witness):

FRE 804(b)(1); CEC 1291-92 (if admitted against party who earlier offered it/had opportunity to crossexamine, admitted subject to “substantive” objections only; if admitted against party based on a different
party’s opportunity to cross-examine, subject to “form” objections as well)
Dying Declaration (unavailable witness):

FRE 804(b)(2) (declarant unavailable, but not necessarily dead); CEC 1242 (must be dead)
Statements Against Interest (unavailable witness):

FRE 804(b)(3) (must corroborate exculpatory evidence in criminal cases); CEC 1230 (no corroboration
requirement; additional statement allowed: makes declarant object of hatred, ridicule, or social disgrace)
Residual Hearsay:

FRE 807; CEC has no equivalent
Character of Victim:

FRE 404(a)(2); CEC 1103 (specific acts/opinion/reputation evidence of victim’s character allowed if offered
by D to prove conduct – no homicide rule)
Character of Defendant in Sexual Assault/Child Molestation Cases:




FRE 413, 414, 415
CEC 1108: criminal action accusing D of sexual offense, evidence of other sexual offenses admissible
CEC 1109: criminal action accusing D of domestic violence, evidence of other domestic violence offenses
admissible
CEC 1106: equivalent of FRE 415
Habit:


FRE 406; CEC 1105
Common law: only admissible if no eyewitness
Prior Convictions:

FRE 609; Prop. 8 (ALL relevant evidence admissible: character evidence used to impeach criminal
defendants: moral turpitude for prior misdemeanors/felonies; specific acts and extrinsic evidence
allowed; no bad before good rule)
Subsequent Remedial Measures:

FRE 407 (not allowed in strict liability); CEC 1151 (subsequent remedial measures permitted to prove strict
liability)
Competence:




FRE 601 (all witnesses presumed competent, except child witnesses may not be presumed to understand
what it means to tell the truth; no rule on hypnosis)
CEC 795: witnesses in criminal cases (either defense/prosecution: can testify if hypnotized, but only in
certain tightly controlled circumstances)
Cal. Crim defendants: can testify despite hypnosis
Cal. Civil case witnesses: incompetent to testify if hypnotized
Jurors:


FRE 606(b): can only testify if extraneous prejudicial information improperly brought to jury’s attention;
can’t testify about influence on deliberative process
CEC 1150: any evidence can be received (internal or external); still no evidence of influence of the
statement
Presumptions:






FRE 301: unless otherwise provided, presumptions shift burden of production, not burden of proof
CEC 603: if not implemented for ANY public policy, presumption affects burden of producing evidence
CEC 604: 603 = bursting bubble
CEC 605: presumption established for public policy affects burden of proof
CEC 606: 605 = presumption doesn’t automatically disappear if contested
CEC 622-24: conclusive presumptions (not rebuttable)
Judicial Notice:




FRE 201
CEC 454: any source of pertinent information, including advice of persons learned in the subject matter,
may be used, whether or not supplied by a party
CEC also doesn’t have a special provision about criminal trials, so in criminal trials jurors must accept
judicially noticed info as conclusive (federal courts: “may be are not required to”)
CEC: universally known facts appropriate for judicial notice
Authentication:



FRE 901-03
CEC 1420: reply doctrine (response to communication authenticated)
CEC 1421: authentication by content (knowledge that writing contains matters unlikely to be known to
others)
Best Evidence Rule:


FRE 1001-08
CEC: preference for written substitute if original can’t be produced (federal rules: don’t have to)