4) Witnesses + Testimonial Evidence Flashcards
who can be a wit: CA
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
who can be a wit: CA vs FRE
CA: requires being able to express self + understanding duty to tell the truth
FRE: no such req, anyone can do it
who must take oath: CA
no formal oath (colloquy instead0, if:
1) child under age 10
2) dependent person w substantial cognitive impairment
who must take oath: CA vs FRE
CA: has exceptions for kids under 10 + ppl w substantial co gimpairments
FRE: everyone must take oath, no exceptions
judge/jury as wits: CA rule
ok judge or jury be a wit, as long as neither party objects
judge/jury as wits: CA vs FRE
CA: ok if no one objects
FRE: never ok
jury testifying post verdict: CA rule
ok testify re ANY improprieties or influences that may have affected (but still not how they influenced their reasoning)
jury testifying post verdict: CA vs FRE
CA: ok testify re any improprities/influences that may have affected
FRE ONLY re outside influences
producing the writing a wit used to refresh recollection: CA (+exception)
must be produced at hearing upon request of OPC
unless: writing not in possession/control of wit or party eliciting tmony
producing the writing a wit used to refresh recollection: CA vs FRE
FRE: only must produce if court determines nec for justice
CA: must produce upon request of opc
hypnosis to refresh recollection: CA rule: civil
civil: wit who has been hypnotized can’t testify
hypnosis to refresh recollection: CA rule: crim (+exception)
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
hypnosis: CA vs FRE
no FRE rule
impeachment: how (CA/FRE same)
1) cotnradiction
2) prior inconsistent st
3) bias, interest, motive
4) prior convictions
5) prior bad acts
use of prior inconsistent sts to impeach: CA
admissible both to impeach AND for its truth
use of prior inconsistent sts to impeach: CA vs FRE
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)
prior bad acts to impeach: CA
admissible if relevant in crim cases only
–must be moral turpitude
–subject to balancing test
(by prop 8 – otherwise was inadmissible)
prior bad acts to impeach: CA how to prove
ok extrinsic evidence!!
prior bad acts to impeach: CA how to prove (CA vs FRE)
CA: ok extrinsic evidence!
FRE: never extrinsic evidence
prior bad acts to impeach: CA vs FRE
CA: crim cases only + moral turpitude + bal test
FRE: must bear on truthfulness, civ or crim, bal test
prior bad acts to impeach: bal test: CA AND FRE
added risk of undue prejudice of bad act being used as improper ch evidence (so higher risk of undue prejudice)
impeachment by prior felony conviction: CA
- -felony
- -involving moral turpitude
- -352 balancing test (loosely includes how long ago)
impeachment by prior felony conviction: CA vs FRE
CA: felony + moral turpitude + 352 balancing
FRE: depends on if dishonesty or not (dishonety: no balancing unless old, no dishonesty: balancing)
moral turpitude: def
readiness to do evil
moral turpitude: yes (exs)
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)
moral turpitude: no (exs)
negligence/unintentional
involuntary manslaughter
drug POSSESSION
misdemeanor conviction to impeach: CA rule
- -inadmissible in civil cases
- -in crim case, bc of Prop 8 (tho would be inadmissible at CEC), yes in if moral turpitude + 352 balancing
misdemeanor conviction to impeach: CA rule vs FRE
CA: if crim + moral turp + 352 balancing, yes
FRE: only if crime of disohesty (10 years or balancing) – otherwise misdemeanors out
expert testimony: CA rule
Kelley/Frye
if novel scientific area/theory, must have gained GENERAL ACCEPTANCE in the relevant scientific community
expert testimony: CA rule: result
will need published appellate case or full-blown evidentiary hearing to decide
expert testimony: CA rule exceptions
Kelley/Frye does NOT apply to:
- -med opinions
- -non-scientific areas
expert testimony: CA rule vs FRE
FRE: Daubert factors
CEC: Kelley/Frye – general acceptance in relevant scientific community
expert: what can opinion be based on: CA rule
expert can base opinion on inadmissible evidence (ex. hearsay)
expert: what can opinion be based on: CA rule vs FRE
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
