4) Witnesses + Testimonial Evidence

Question 1

who can be a wit: CA

Answer 1

can NOT be a wit if:

1) incapable of expressing self so as to be understood (even w interp), or
2) incapable of understanding the duty to tell the truth

Question 2

who can be a wit: CA vs FRE

Answer 2

CA: requires being able to express self + understanding duty to tell the truth

FRE: no such req, anyone can do it

Question 3

who must take oath: CA

Answer 3

no formal oath (colloquy instead0, if:

1) child under age 10
2) dependent person w substantial cognitive impairment

Question 4

who must take oath: CA vs FRE

Answer 4

CA: has exceptions for kids under 10 + ppl w substantial co gimpairments

FRE: everyone must take oath, no exceptions

Question 5

judge/jury as wits: CA rule

Answer 5

ok judge or jury be a wit, as long as neither party objects

Question 6

judge/jury as wits: CA vs FRE

Answer 6

CA: ok if no one objects

FRE: never ok

Question 7

jury testifying post verdict: CA rule

Answer 7

ok testify re ANY improprieties or influences that may have affected (but still not how they influenced their reasoning)

Question 8

jury testifying post verdict: CA vs FRE

Answer 8

CA: ok testify re any improprities/influences that may have affected

FRE ONLY re outside influences

Question 9

producing the writing a wit used to refresh recollection: CA (+exception)

Answer 9

must be produced at hearing upon request of OPC

unless: writing not in possession/control of wit or party eliciting tmony

Question 10

producing the writing a wit used to refresh recollection: CA vs FRE

Answer 10

FRE: only must produce if court determines nec for justice

CA: must produce upon request of opc

Question 11

hypnosis to refresh recollection: CA rule: civil

Answer 11

civil: wit who has been hypnotized can’t testify

Question 12

hypnosis to refresh recollection: CA rule: crim (+exception)

Answer 12

crim: wit who has been hypnotized can testify if
1) written record of pre-H recollection
2) hypnosis was video + licensed professional +
3) wit testifies only about things remembered before the hypnosis

exception: if crim-D has been hypnotized he can still testify

Question 13

hypnosis: CA vs FRE

Answer 13

no FRE rule

Question 14

impeachment: how (CA/FRE same)

Answer 14

1) cotnradiction
2) prior inconsistent st
3) bias, interest, motive
4) prior convictions
5) prior bad acts

Question 15

use of prior inconsistent sts to impeach: CA

Answer 15

admissible both to impeach AND for its truth

Question 16

use of prior inconsistent sts to impeach: CA vs FRE

Answer 16

CA: admissible both to impeach AND for its truth

FRE: admissible to imepach only, not for its truth (different rule–reqs st to have been made under oath for to be admissible for its truth)

Question 17

prior bad acts to impeach: CA

Answer 17

admissible if relevant in crim cases only
–must be moral turpitude
–subject to balancing test
(by prop 8 – otherwise was inadmissible)

Question 18

prior bad acts to impeach: CA how to prove

Answer 18

ok extrinsic evidence!!

Question 19

prior bad acts to impeach: CA how to prove (CA vs FRE)

Answer 19

CA: ok extrinsic evidence!

FRE: never extrinsic evidence

Question 20

prior bad acts to impeach: CA vs FRE

Answer 20

CA: crim cases only + moral turpitude + bal test

FRE: must bear on truthfulness, civ or crim, bal test

Question 21

prior bad acts to impeach: bal test: CA AND FRE

Answer 21

added risk of undue prejudice of bad act being used as improper ch evidence (so higher risk of undue prejudice)

Question 22

impeachment by prior felony conviction: CA

Answer 22

• -felony
• -involving moral turpitude
• -352 balancing test (loosely includes how long ago)

Question 23

impeachment by prior felony conviction: CA vs FRE

Answer 23

CA: felony + moral turpitude + 352 balancing

FRE: depends on if dishonesty or not (dishonety: no balancing unless old, no dishonesty: balancing)

Question 24

moral turpitude: def

Answer 24

readiness to do evil

Question 25

moral turpitude: yes (exs)

Answer 25

1) most sex crimes
2) crimes of dishonesty (perjury, grand theft, receiving stolen property, tax evasion)
3) crimes of violence (assault, battery, murder, manslauthger, rape, spousal abuse, vandalism)
4) crimes gainst property (burglary, arson)
5) other serious crimes (escape, DRUG SALES, hit + run, kidnapping, extortion, statutory rape)

Question 26

moral turpitude: no (exs)

Answer 26

negligence/unintentional
involuntary manslaughter
drug POSSESSION

Question 27

misdemeanor conviction to impeach: CA rule

Answer 27

• -inadmissible in civil cases

- -in crim case, bc of Prop 8 (tho would be inadmissible at CEC), yes in if moral turpitude + 352 balancing

Question 28

misdemeanor conviction to impeach: CA rule vs FRE

Answer 28

CA: if crim + moral turp + 352 balancing, yes

FRE: only if crime of disohesty (10 years or balancing) – otherwise misdemeanors out

Question 29

expert testimony: CA rule

Answer 29

Kelley/Frye

if novel scientific area/theory, must have gained GENERAL ACCEPTANCE in the relevant scientific community

Question 30

expert testimony: CA rule: result

Answer 30

will need published appellate case or full-blown evidentiary hearing to decide

Question 31

expert testimony: CA rule exceptions

Answer 31

Kelley/Frye does NOT apply to:

• -med opinions
• -non-scientific areas

Question 32

expert testimony: CA rule vs FRE

Answer 32

FRE: Daubert factors

CEC: Kelley/Frye – general acceptance in relevant scientific community

Question 33

expert: what can opinion be based on: CA rule

Answer 33

expert can base opinion on inadmissible evidence (ex. hearsay)

Question 34

expert: what can opinion be based on: CA rule vs FRE

Answer 34

FRE: sometimes can base it on inadmissible evidence but must do 703 balancing test which disfavors admision ( (probative value must substantially outweigh prejudicial effect)

CEC: ok base opinion on inadmissible evidence