California Evidence Distinctions

CALIFORNIA EVIDENCE DISTINCTIONS

California is not a Uniform Bar Exam jurisdiction, and California evidence law is codified in the California Evidence Code (CEC), enacted in 1965, rather than in the Federal Rules of Evidence (FRE). While the two bodies of law overlap heavily in structure and policy, the bar examiners reward students who can spot the discrete places where California departs from federal law. This page assumes you already know the national doctrine and focuses exclusively on those departures — the section numbers, the criminal-versus-civil twists, and above all the impact of Proposition 8.

📘 This page covers only California's departures from the Federal Rules of Evidence. For the full national doctrine, see the MBE Evidence Long Outline.

I. OVERALL STRUCTURE AND PROPOSITION 8

The single most tested California evidence distinction is Proposition 8, the "Truth-in-Evidence" provision adopted by the voters in 1982 and now found in the California Constitution, article I, section 28(f)(2). Understanding Prop 8 is the gateway to every other criminal-case distinction.

A. The California Evidence Code Generally

The CEC is a comprehensive statutory scheme. Where the FRE use a rule-number system (Rule 401, Rule 801, etc.), California uses Evidence Code section numbers, and the numbers are different. CA Rule: Relevance is governed by CEC 210 and 350-352; hearsay begins at CEC 1200; privileges run from CEC 900 onward. There is no analogue to the federal "residual" or "catch-all" hearsay exception (FRE 807) — California has no residual exception at all, which is a major point examined below.

B. Proposition 8 — "Truth-in-Evidence"

CA Rule: In CRIMINAL cases, Proposition 8 abrogated most state-law rules that exclude relevant evidence. The default in a criminal case is that all relevant evidence is admissible, even if a CEC exclusionary provision would otherwise bar it. Federal: the FRE apply equally in civil and criminal cases. California: Prop 8 splits the analysis — criminal cases are governed by the "all relevant evidence is admissible" default, while civil cases remain fully governed by the ordinary CEC exclusionary rules.

Prop 8 does NOT abrogate everything. The exclusionary rules that SURVIVE Prop 8 and still operate in criminal cases are: (1) CEC 352 (court's discretion to exclude for prejudice, confusion, or undue consumption of time); (2) the hearsay rule and its exceptions; (3) all privileges; (4) the rape-shield/character-of-victim limitations; (5) the secondary evidence rule; (6) exclusionary rules later enacted by a two-thirds vote of the Legislature; and (7) federal constitutional exclusionary rules (e.g., Miranda, Fourth Amendment). A handy mnemonic is that "352, hearsay, and privileges always survive."

EXAMPLE: In a criminal trial, the prosecution offers evidence of the defendant's prior bad acts to show propensity. Under the CEC alone, CEC 1101(a) would bar character-as-propensity evidence. But because Prop 8 abrogated CEC 1101(a) in criminal cases (1101 is not on the survivors list), the evidence comes in subject only to CEC 352. By contrast, in a civil case CEC 1101(a) fully bars the propensity inference.

ESSAY WRITING TIP: When the call of the question is a CRIMINAL case, your FIRST move on any state-law objection is to ask whether Prop 8 abrogated the rule. State the rule: "In California criminal cases, Proposition 8 makes all relevant evidence admissible unless the exclusionary rule is one of the enumerated survivors." Then check the survivor list. If the rule survives, apply it; if not, note that only CEC 352 remains as a filter. Failing to raise Prop 8 in a criminal essay is the classic way to lose points on a California evidence question.

CA BAR TIP: Prop 8 applies ONLY to criminal cases. If the fact pattern is a civil suit, do not mention Prop 8 — applying it there is affirmatively wrong and signals you don't understand the doctrine. Also remember that Prop 8 cannot revive evidence barred by the federal Constitution or by a statute passed by a two-thirds legislative supermajority.

II. RELEVANCE AND CEC 352

California's relevance framework tracks federal law in substance but differs in numbering and in the precise balancing standard.

A. Definition of Relevance

CA Rule: CEC 210 defines relevant evidence as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." This is materially identical to FRE 401, but note the phrase "tendency in reason."

B. The Discretionary Exclusion — CEC 352, Not "Rule 403"

CA Rule: Under CEC 352, the court has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, confusing the issues, or misleading the jury. Federal: FRE 403 lists prejudice, confusion, misleading the jury, undue delay, waste of time, and needless presentation of cumulative evidence. California: CEC 352 is narrower in its enumerated dangers and uses the formulation "substantial danger of undue prejudice." Never cite "Rule 403" on a California essay — cite CEC 352.

EXAMPLE: Gruesome autopsy photographs in a murder case are challenged. The court conducts a CEC 352 weighing of probative value against the substantial danger of undue prejudice. This is the SAME analysis you would do federally under 403, but on the California essay you must label it CEC 352.

ESSAY WRITING TIP: Because CEC 352 survives Prop 8, it is your safety valve in EVERY criminal case where a propensity or other inflammatory item comes in through Prop 8's open door. After noting that Prop 8 admits the evidence, immediately pivot to CEC 352 and weigh probative value against undue prejudice — that two-step structure (Prop 8 in, 352 as filter) is exactly what graders look for.

CA BAR TIP: CEC 352 is the most frequently invoked California provision on the essay. Memorize its operative language and use it by name. Pair every Prop 8 admission with a CEC 352 discussion.

III. CHARACTER EVIDENCE

California's character rules share the federal architecture (character is generally inadmissible to prove conduct on a particular occasion) but contain several distinctive propensity exceptions and different section numbers.

A. General Bar — CEC 1101

CA Rule: CEC 1101(a) bars evidence of character to prove conduct on a specified occasion. CEC 1101(b) permits other-acts evidence when relevant to prove a non-propensity fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake — the familiar "MIMIC"/non-character purposes. CEC 1101(c) allows character evidence to support or attack credibility. Federal: FRE 404 and 405. California: substantively parallel, but cite CEC 1101.

B. Character of the Victim — CEC 1103

CA Rule: CEC 1103 lets a criminal defendant offer evidence of the VICTIM's character (including specific instances, opinion, and reputation) to prove the victim acted in conformity — most importantly the victim's character for violence to support self-defense. Once the defendant opens the door under 1103(a), the prosecution may rebut with evidence of the victim's good character AND with evidence of the DEFENDANT's bad character for the same trait. Federal: FRE 404(a)(2) allows victim-character evidence but generally limits the defendant's proof to reputation and opinion (specific acts only on cross or when character is an essential element). California: CEC 1103 expressly permits the defendant to prove the victim's violent character with SPECIFIC INSTANCES of conduct, which is broader than the federal default.

EXAMPLE: In a homicide prosecution where the defendant claims self-defense, the defendant may introduce specific prior violent acts of the deceased victim under CEC 1103 to show the victim was the first aggressor. Federally, the defendant would ordinarily be confined to reputation or opinion testimony.

C. Propensity Exceptions in Sexual-Assault and Domestic-Violence Cases

CA Rule: California enacted express propensity exceptions that go beyond the FRE: CEC 1108 — in a criminal action for a sexual offense, evidence of the defendant's OTHER sexual offenses is admissible to show propensity, subject to CEC 352. CEC 1109 — in a criminal action involving domestic violence, child abuse, or elder/dependent-adult abuse, evidence of the defendant's other acts of the same category is admissible to show propensity, subject to CEC 352. Federal: FRE 413-415 allow propensity evidence in sexual-assault and child-molestation cases (civil and criminal). California: CEC 1108 parallels the federal sexual-offense provision, but CEC 1109's domestic-violence/elder-abuse propensity exception has NO federal equivalent.

EXAMPLE: A defendant is charged with spousal battery. Under CEC 1109 the prosecution may introduce the defendant's prior uncharged acts of domestic violence to show a propensity for such conduct, subject only to a CEC 352 weighing. There is no comparable federal rule of evidence for domestic-violence propensity.

ESSAY WRITING TIP: When you see a sexual-assault, domestic-violence, or elder-abuse prosecution, flag CEC 1108 or 1109 BY NUMBER, state that they create statutory propensity exceptions, and then always run the CEC 352 balance — the examiners want both the exception and the 352 weighing.

CA BAR TIP: Keep 1108 (sex offenses) and 1109 (domestic violence / abuse) straight, and remember both are limited to CRIMINAL actions and both require a CEC 352 check. Do not confuse them with the rape-shield statute (CEC 1103(c)/782), which limits evidence of the COMPLAINANT's sexual conduct.

IV. CREDIBILITY AND IMPEACHMENT

Impeachment is where Prop 8 most dramatically reshapes California practice, especially impeachment by prior misconduct.

A. Impeachment With Felony Convictions and Misdemeanor Conduct

CA Rule: In CRIMINAL cases, Prop 8 (as construed in People v. Castro and People v. Wheeler) allows impeachment with any prior conviction of a felony involving MORAL TURPITUDE, and even with the underlying CONDUCT amounting to a misdemeanor involving moral turpitude (not merely the misdemeanor conviction). The trial court retains CEC 352 discretion to exclude. Federal: FRE 609 limits impeachment to convictions — felonies (subject to balancing) and crimes of dishonesty or false statement; mere misdemeanor conduct that did not result in a qualifying conviction is generally not admissible. California: in criminal cases, a witness may be impeached with misdemeanor CONDUCT involving moral turpitude even without a conviction, because Prop 8 opened the door, subject to CEC 352.

EXAMPLE: A prosecution witness in a criminal trial committed acts amounting to misdemeanor theft (a crime of moral turpitude) but was never convicted. In California criminal court, the defense may cross-examine about that conduct for impeachment, subject to CEC 352. Federally, with no conviction, FRE 609 would not authorize this, and FRE 608(b) would allow inquiry only into conduct probative of truthfulness, not all moral-turpitude conduct.

B. Civil Cases

CA Rule: Because Prop 8 does not apply to civil cases, impeachment by prior conduct in California CIVIL actions is governed by the ordinary CEC limits and is much more restricted than the wide-open criminal rule. Federal: FRE 608/609 apply the same in civil and criminal. California: the felony/misdemeanor-conduct impeachment expansion is a CRIMINAL-case phenomenon only.

ESSAY WRITING TIP: For impeachment in a criminal case, structure your answer as: (1) Prop 8 admits prior moral-turpitude felony convictions AND misdemeanor conduct; (2) the court still applies CEC 352. For a civil case, do NOT invoke Prop 8 and instead apply the narrower CEC rules.

CA BAR TIP: The phrase to memorize is "moral turpitude." California impeachment turns on whether the prior felony or misdemeanor conduct involves moral turpitude, not on the federal "dishonesty or false statement" category. Drop "moral turpitude" into your impeachment analysis to signal mastery.

V. HEARSAY

California's hearsay scheme is built on the same definition but uses its own exception numbers, classifies party admissions differently, and treats prior statements of witnesses far more liberally than federal law.

A. Definition and the Admissions Distinction

CA Rule: CEC 1200 defines hearsay as a statement made other than by a witness while testifying, offered to prove the truth of the matter stated. Critically, California treats a party's own ADMISSION as a hearsay EXCEPTION (CEC 1220), not as non-hearsay. Federal: FRE 801(d)(2) defines opposing-party statements as NOT hearsay (an exclusion from the definition). California: CEC 1220 classifies party admissions as hearsay that falls within an EXCEPTION. The practical result is the same (the statement comes in), but the labeling matters on the essay. Likewise, authorized, adoptive, and co-conspirator admissions appear at CEC 1221-1223 as exceptions.

B. Prior Statements of Testifying Witnesses — A Major Distinction

CA Rule: California admits prior inconsistent statements (CEC 1235) and prior consistent statements (CEC 1236) as substantive evidence — not merely to impeach or rehabilitate — even if the prior statement was NOT made under oath. Federal: FRE 801(d)(1)(A) admits a prior INCONSISTENT statement as substantive evidence only if it was made under oath at a prior proceeding; otherwise it is admissible only to impeach. California: CEC 1235 admits ANY prior inconsistent statement of a testifying witness as substantive evidence, regardless of whether it was under oath, so long as the witness is subject to cross-examination. This is one of the most heavily tested California distinctions.

EXAMPLE: A witness told police at the scene, "The blue car ran the light," but testifies at trial that the light was green. In California, the prior statement comes in under CEC 1235 as SUBSTANTIVE proof that the blue car ran the light, even though it was not under oath. Federally, because the scene statement was not made under oath at a proceeding, it could be used only to impeach, not as substantive evidence.

CA Rule (prior identifications): CEC 1238 admits a prior identification of a party as substantive evidence if the witness made it while the events were fresh and confirms it at trial.

C. Spontaneous, Contemporaneous, and State-of-Mind Statements

CA Rule: CEC 1240 is California's "spontaneous statement" exception (the federal excited utterance). CEC 1241 covers a "contemporaneous statement" but is NARROWER than the federal present-sense-impression exception — it admits a statement only if it explains or qualifies the declarant's OWN conduct while engaged in that conduct. Federal: FRE 803(1) admits any present-sense impression describing an event while or immediately after perceiving it. California: CEC 1241 requires that the statement explain the declarant's own contemporaneous conduct, so California has no broad present-sense-impression exception. State-of-mind statements are admissible under CEC 1250-1252, paralleling FRE 803(3).

D. Past Recollection Recorded and Business/Official Records

CA Rule: Past recollection recorded is CEC 1237; business records are CEC 1271; official records are CEC 1280. A distinctive California point: under CEC 1280, an OFFICIAL record can be admitted on a showing of trustworthiness WITHOUT a live custodian or sponsoring witness, whereas the business-records exception (1271) generally requires a custodian's foundational testimony or declaration. Federal: FRE 803(6) and 803(8). California: the official-records exception (CEC 1280) does not require a sponsoring witness, a convenience that differs from the federal public-records practice.

E. Declarant Unavailable

CA Rule: Former testimony is CEC 1290-1292. The DYING DECLARATION exception (CEC 1242) is broader than the federal version: it applies in ANY civil or criminal action and is not limited to homicide prosecutions or civil cases, requiring only that the declarant spoke from a sense of immediately impending death about its cause or circumstances. Federal: FRE 804(b)(2) limits dying declarations to homicide prosecutions and civil cases. California: CEC 1242 has NO such limitation — it applies across the board, including in non-homicide criminal cases.

CA Rule (declaration against interest): CEC 1230 admits a declaration against the declarant's penal, pecuniary, proprietary, or SOCIAL interest (e.g., a statement creating a risk of hatred, ridicule, or social disgrace). Federal: FRE 804(b)(3) covers statements against pecuniary, proprietary, or penal interest, and (in criminal cases) requires corroborating circumstances for statements exposing the declarant to criminal liability. California: CEC 1230 also reaches statements against SOCIAL interest, which is broader than the federal rule.

EXAMPLE: A dying assault victim (who survives the immediate event but the prosecution is for attempted murder) states the attacker's identity while believing death is imminent. Under CEC 1242 this dying declaration is admissible in California even though the charge is not homicide; federally it would be excluded because FRE 804(b)(2) confines dying declarations to homicide prosecutions and civil cases.

F. No Residual Exception

CA Rule: California has NO residual or catch-all hearsay exception. If a statement does not fit an enumerated CEC exception, it is inadmissible hearsay. Federal: FRE 807 provides a residual exception for trustworthy hearsay not covered by another exception. California: there is no equivalent — do not import FRE 807 reasoning into a California essay.

ESSAY WRITING TIP: When analyzing hearsay on a California essay, march through the enumerated CEC exceptions by number (1220 admissions, 1235/1236 prior statements, 1240 spontaneous, 1230 against interest, 1242 dying declaration, 1271/1280 records, 1290s former testimony). If nothing fits, conclude the statement is INADMISSIBLE — never fall back on a residual exception, because California has none.

CA BAR TIP: The blockbuster hearsay distinctions to flag are: (1) prior inconsistent/consistent statements as SUBSTANTIVE evidence (CEC 1235/1236) without an oath requirement; (2) the broader dying declaration (CEC 1242, not limited to homicide); (3) the against-SOCIAL-interest declaration (CEC 1230); and (4) the absence of any residual exception. These four recur constantly.

VI. PRIVILEGES

California privileges are entirely statutory (CEC 900 et seq.) and are notably broader than the patchwork of federal common-law privileges. Privileges survive Prop 8, so they apply with full force in criminal cases.

A. Physician-Patient Privilege

CA Rule: California recognizes a PHYSICIAN-PATIENT privilege (CEC 990-1007) protecting confidential communications made for diagnosis or treatment, subject to exceptions (e.g., patient-litigant exception, no privilege in most criminal proceedings, no privilege when the patient sues placing condition in issue). Federal: there is NO general physician-patient privilege under federal common law. California: CEC 994 creates a genuine physician-patient privilege — a key distinction.

B. Psychotherapist-Patient Privilege

CA Rule: CEC 1010-1027 codify a psychotherapist-patient privilege. Federal: recognized in Jaffee v. Redmond as a matter of federal common law. California: codified, and broader in defined coverage, but both jurisdictions protect it. California also recognizes the dangerous-patient exception.

C. Spousal Privileges — Two Separate Privileges

CA Rule: California has TWO distinct spousal privileges: (1) the privilege NOT to testify against one's spouse (CEC 970-973), held by the WITNESS spouse, available in any proceeding while married; and (2) the confidential MARITAL COMMUNICATIONS privilege (CEC 980-987), held by either spouse, protecting confidences made during the marriage and surviving divorce. Federal: federal common law likewise recognizes a spousal testimonial privilege (held by the witness spouse, criminal cases) and a marital-communications privilege. California: the testimonial privilege is broader — it is available in CIVIL as well as criminal cases — and is held by the witness spouse.

D. Attorney-Client and Mediation Privileges

CA Rule: The attorney-client privilege (CEC 950-962) is robust and held by the client. California also has an absolute MEDIATION privilege (CEC 1119) protecting anything said or written for the purpose of, or in the course of, a mediation. Federal: no comparable blanket mediation privilege. California: CEC 1119 makes mediation communications broadly inadmissible and undiscoverable — a distinctive California protection.

E. Privilege Against Self-Incrimination

CA Rule: Codified at CEC 940, the privilege against self-incrimination tracks the federal constitutional privilege. Other CEC privileges include clergy-penitent (1030-1034) and the privilege protecting a complainant's identity / official information.

EXAMPLE: In a California civil personal-injury suit, the defendant seeks the plaintiff's confidential statements to her treating physician. Because California recognizes a physician-patient privilege (CEC 994) unknown to federal common law, the analysis turns on whether the patient-litigant exception applies (it likely does, since the plaintiff placed her physical condition in issue). Federally, no physician-patient privilege would even arise.

ESSAY WRITING TIP: On a privileges question, identify the SPECIFIC California privilege by name and number, note that California privileges are statutory and survive Prop 8, then work through the holder of the privilege and any exceptions. Always flag the physician-patient privilege and the two spousal privileges as California-specific contrasts with federal law.

CA BAR TIP: The two highest-yield privilege distinctions are (1) California HAS a physician-patient privilege (federal common law does not) and (2) California has TWO spousal privileges, with the testimonial privilege available in civil cases. Mention CEC 1119 mediation confidentiality if the facts involve settlement discussions in mediation.

VII. PITCHESS MOTIONS — PEACE OFFICER PERSONNEL RECORDS

CA Rule: Under CEC 1043-1047 (and Penal Code 832.7), a criminal defendant seeking discovery of a peace officer's personnel records (e.g., prior complaints of excessive force or dishonesty) must bring a "Pitchess motion," establishing good cause and materiality, after which the court conducts an in-camera review. Federal: there is no equivalent statutory Pitchess procedure. California: the Pitchess motion under CEC 1043 is the exclusive method to obtain confidential peace-officer personnel records and is uniquely Californian.

ESSAY WRITING TIP: If a criminal fact pattern involves police misconduct and the defense wants the officer's disciplinary history, name the Pitchess motion and cite CEC 1043 and the good-cause/in-camera framework — this is a distinctly California issue with no federal counterpart.

CA BAR TIP: Pitchess is a frequently rewarded "California-only" buzzword. Even a brief, accurate mention earns points because it demonstrates you know a procedure with no federal analogue.

VIII. AUTHENTICATION AND THE SECONDARY EVIDENCE RULE

California abolished the traditional "best evidence rule" and replaced it with the Secondary Evidence Rule, which survives Prop 8.

A. The Secondary Evidence Rule

CA Rule: Under CEC 1521-1523, the content of a writing may be proved by an original OR by otherwise admissible secondary evidence (copies, testimony) unless a genuine dispute exists about the terms of the writing and justice requires the original, or admitting the secondary evidence would be unfair. Federal: FRE 1002 (the "best evidence rule") requires the original to prove the content of a writing, recording, or photograph, with duplicates admissible under FRE 1003. California: the Secondary Evidence Rule presumptively ADMITS secondary evidence of a writing's content, reversing the federal preference for the original. California retains a stricter rule for proving the content of an oral statement and for certain official records.

EXAMPLE: A party offers a photocopy of a contract to prove its terms. Under California's Secondary Evidence Rule (CEC 1521), the copy is admissible unless there is a genuine dispute about the contract's terms and justice requires the original. Federally, you would analyze admissibility under the best evidence rule and the duplicate provision (FRE 1002/1003).

ESSAY WRITING TIP: Do not write "best evidence rule" on a California essay. Use "Secondary Evidence Rule" and cite CEC 1521. Note that this rule survives Prop 8, so it applies in criminal cases.

CA BAR TIP: The terminology swap (Secondary Evidence Rule, not Best Evidence Rule) is itself the tested point. Authentication (CEC 1400 et seq.) otherwise tracks federal law.

IX. OPINION TESTIMONY AND EXPERT EVIDENCE

California's standard for admitting expert testimony — especially novel scientific evidence — differs sharply from the federal Daubert standard.

A. New Scientific Techniques — Kelly (Frye), Not Daubert

CA Rule: For NEW or novel scientific techniques, California applies the Kelly test (People v. Kelly, formerly Kelly-Frye), which asks whether the technique is GENERALLY ACCEPTED in the relevant scientific community, proven through a properly qualified witness, and correctly applied in the case. Federal: the FRE follow Daubert v. Merrell Dow, under which the judge acts as gatekeeper assessing reliability via factors like testability, peer review, error rate, and acceptance. California: REJECTED Daubert and retains the Kelly "general acceptance" standard for new scientific evidence.

B. Trial Court Gatekeeping — Sargon

CA Rule: For expert opinion generally, Sargon Enterprises v. USC confirms that the trial court acts as a gatekeeper under CEC 801-802, excluding expert opinion based on speculation, irrelevant matter, or reasons unsupported by the material relied on. This is a relevance/reliability gatekeeping role, but it does NOT adopt the full Daubert reliability factors for novel science — Kelly still governs new scientific techniques. Federal: Daubert/Kumho Tire gatekeeping applies to all expert testimony. California: Sargon polices the reasoning of expert opinion, while Kelly separately governs novel scientific methods.

EXAMPLE: The prosecution offers results from a novel DNA-analysis methodology never before used in court. California applies the Kelly test: is the new technique generally accepted in the relevant scientific community? Federally, the court would run a Daubert reliability analysis. Same evidence, different gatekeeping standard.

ESSAY WRITING TIP: Whenever you see NEW or novel scientific evidence in a California question, write "Kelly" (general acceptance), and expressly contrast: "Federal courts apply Daubert; California rejects Daubert for new scientific techniques and retains the Kelly general-acceptance standard." Cite Sargon for ordinary expert-opinion gatekeeping.

CA BAR TIP: The single sentence "California follows Kelly, not Daubert, for new scientific techniques" is worth real points. Memorize it. Also note that an expert in California may rely on otherwise inadmissible matter of a type reasonably relied upon by experts (CEC 801(b)), but People v. Sanchez limits an expert from relating case-specific hearsay as true.

X. JUDICIAL NOTICE, BURDENS, AND PRESUMPTIONS

California codifies judicial notice and, distinctively, classifies presumptions by the burden they shift.

A. Judicial Notice

CA Rule: Judicial notice is governed by CEC 450-460. Some matters are MANDATORY (e.g., the law of California and the United States) and others PERMISSIVE (e.g., facts of common knowledge or readily verifiable facts). Federal: FRE 201 governs judicial notice only of adjudicative facts and makes it discretionary or mandatory on request. California: CEC 451 lists MANDATORY judicial-notice categories (including matters of law), which is broader and more structured than FRE 201.

B. Presumptions — Two Classes

CA Rule: California divides rebuttable presumptions into two kinds: (1) presumptions affecting the BURDEN OF PRODUCING EVIDENCE (CEC 603-604), which simply require the opponent to come forward with contrary evidence and then vanish (the "bursting bubble"); and (2) presumptions affecting the BURDEN OF PROOF (CEC 605-606), which actually SHIFT the burden of persuasion to the opponent and do not disappear merely because some contrary evidence is offered. Federal: FRE 301 adopts the "bursting bubble" approach for civil presumptions generally — a presumption shifts only the burden of production, never the burden of persuasion. California: some California presumptions (those established to implement public policy) shift the BURDEN OF PROOF itself, which federal law does not do.

EXAMPLE: A presumption that a child born during a marriage is the husband's child is a policy-based presumption affecting the burden of proof in California — the party contesting paternity bears the burden of persuasion to overcome it. Under FRE 301, a presumption would shift only the burden of production.

ESSAY WRITING TIP: When a presumption appears, first classify it: does it affect the burden of PRODUCING EVIDENCE (bursting bubble) or the burden of PROOF (policy-based, shifts persuasion)? State the consequence of each classification. This two-category analysis is uniquely Californian and is exactly what graders reward.

CA BAR TIP: The phrase "presumption affecting the burden of proof versus the burden of producing evidence" is the California signal. If a presumption serves a public policy (legitimacy, ownership, etc.), call it a burden-of-proof presumption that shifts persuasion — that distinguishes California from the federal bursting-bubble default.

XI. CALIFORNIA DISTINCTIONS CHECKLIST

1. Proposition 8 (criminal only): In criminal cases, all relevant evidence is admissible unless the rule is an enumerated survivor — CEC 352, hearsay, privileges, victim-character limits, secondary evidence. Civil cases are unaffected; never apply Prop 8 to a civil case.
2. CEC 352, not "Rule 403": Discretionary exclusion for substantial danger of undue prejudice; survives Prop 8 and pairs with every Prop 8 admission.
3. Character of victim (CEC 1103): Criminal defendant may prove the victim's violent character with SPECIFIC INSTANCES (broader than federal); prosecution may then rebut and attack the defendant's same trait.
4. Propensity exceptions (CEC 1108/1109): Sexual offenses (1108) and domestic violence/child/elder abuse (1109) — 1109 has no federal equivalent; both subject to CEC 352.
5. Impeachment (criminal): Prior felony convictions AND misdemeanor CONDUCT involving moral turpitude, via Prop 8, subject to CEC 352 — broader than FRE 608/609.
6. Party admissions: A hearsay EXCEPTION (CEC 1220), not an exclusion from the hearsay definition.
7. Prior witness statements (CEC 1235/1236): Prior inconsistent and consistent statements admissible as SUBSTANTIVE evidence even without an oath — a major departure from FRE 801(d)(1).
8. Dying declaration (CEC 1242): Admissible in ANY civil or criminal action, not limited to homicide.
9. Declaration against interest (CEC 1230): Includes statements against SOCIAL interest, broader than federal.
10. No residual exception: If no enumerated CEC exception fits, the hearsay is inadmissible — there is no FRE 807 analogue.
11. Physician-patient privilege: California recognizes it (CEC 994); federal common law does not.
12. Two spousal privileges: Testimonial (CEC 970, witness spouse, civil and criminal) and confidential marital communications (CEC 980).
13. Mediation privilege (CEC 1119): Broad confidentiality with no federal counterpart.
14. Pitchess motion (CEC 1043): Exclusive procedure for peace-officer personnel records; no federal analogue.
15. Secondary Evidence Rule (CEC 1521): Replaces the best evidence rule; secondary evidence of a writing's content is presumptively admissible.
16. Kelly, not Daubert: New scientific techniques judged by GENERAL ACCEPTANCE; Sargon governs ordinary expert-opinion gatekeeping; Sanchez bars relating case-specific hearsay as true.
17. Presumptions: Distinguish those affecting the burden of PRODUCING EVIDENCE (bursting bubble) from those affecting the burden of PROOF (policy-based, shift persuasion) — federal law shifts only production.