(7) Evidence: Witness on Stand

Question 1

Scope of Cross-Examination

Answer 1

The scope of cross examination is limited to (1) the subject matter of the direct examination; (2) credibility of the witness; AND (3) inquiries into additional matters if the court allows.

Question 2

Types of Witness Testimony

Answer 2

1. Lay Witness Testimony
2. Lay Witness Opinion
3. Expert Witness Testimony

Question 3

FRE vs CA:

Lay Witness Testimony

Answer 3

A lay witness’s testimony is admissible if they are competent to testify. To be competent the witness must have (1) personal knowledge of the matter and (2) give an oath or affirmation to testify truthfully.

In CA to be competent a lay witness must also understand the duty to tell the truth.

Under FRE competency is presumed.

Question 4

Lay Witness Opinion

Answer 4

A lay witness may only offer an opinion if it is (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue. Under FRE the opinion cannot be based on scientific, technical or other specialized knowledge.

Question 5

What may a Lay Witness be paid?

Answer 5

A witness may only be paid reasonably expenses incurred and the reasonable value of their time spent in providing evidence.

Question 6

Expert Witness Testimony

Answer 6

Expert testimony is permitted when (1) the witness is qualified as an expert; (2) the opinion is helpful to the jury (if the average jury couldn’t figure it out themselves); (3) the witness believes in the opinion to a reasonable degree of certainty; (4) the opinion is supported by sufficient facts or data (i.e., personal knowledge, evidence, examination); AND (5) the opinion is based on reliable principles and methods that were reliably applied.

Question 7

What witness rules is an interpreter subject to?

Answer 7

An interpreter is subject to the rules of an expert witness.

And an interpreter must also give an oath to interpret truthfully.

Question 8

Reliability Rule (FRE & CA)

Answer 8

Under FRE: Daubert/Kumho Standard – reliability is based on a methodology’s (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field.

Under CA: Kelley/Frye Standard – Reliability is based on whether a methodology is generally accepted in the field.

Question 9

Types of Witnesses

Answer 9

1. Judge as a Witness
2. Juror as a Witnes
3. Child as a Witness
4. Dead Man’s Statute

Question 10

Judge as a Witness

Types of Witness

Answer 10

The presiding judge is absolutely barred from testifying as a witness in the trial. A party does not need to object.

Question 11

Do the Juror as a Witness rules apply to grand jury proceedings?

Juror as a Witness

Answer 11

YES

Question 12

When can they testify & to what matters:

Juror as a Witness - At Trial

Types of Witness

Answer 12

A juror may not testify as a witness at trial in front of other jury members. A juror maybe called to testify outside the presence of other jury members if the opposing party is given the opportunity to object outside the presence of the jury.

The juror may testify to matters that occur during the trial (ex. Bribery of a juror or jurors failure to follow the courts instructions)

Question 13

Juror as a Witness - After Trial

Types of Witness

Answer 13

A juror may not testify about (a) statements made during jury deliberations; (b) the effect of anything upon any jurors vote; or (c) any juror’s mental processes concerning the verdict.

However, a juror may testify about whether (a) outside prejudicial information was brought to the jury’s attention; (b) an outside influence was bearing on a juror (ex. Threat of life or family members); OR (c) a mistake was made in entering the verdict on the verdict form.

Question 14

Child as a Witness

Types of Witness

Answer 14

A child is eligible to testify if they understand the importance of telling the truth and can differentiate between truth and falsehood. There is no specific age requirement to be competent it is up to the court.

Question 15

Is there an age requirement to be competent to testify in court?

Child as a Witness

Answer 15

NO

Question 16

Dead Man’s Statute

Types of Witness

Answer 16

In civil cases an interested party cannot testify for their interest and against the decedent estate about communications or transactions with the decedent unless there is a waiver.

[Note: This does not apply in criminal cases. There is no rule under the FRE or CA but many other states have implemented these statutes – usually the wrong answer on the multiple choice.]

Question 17

Does Dean Man’s Statute apply in criminal cases?

Answer 17

NO

Question 18

Is there a Dead Man’s Statute under the FRE and CA

Answer 18

NO but many other states have implemented these statutes - usually the wrong answer on the multiple choice.

Question 19

Present Recollection Refreshed Rule

Answer 19

A witness may examine any item to refresh their present recollection. The testimony must be based on their refreshed recollection and not the item itself.

The adverse party may have the document produced, inspect the document and cross examine the witness about it. However the item may only be admitted to impeach witness credibility.

Question 20

Can the documents be produced under the Present Recollection Refreshed Rule?

Answer 20

The adverse party may have the document produced, inspect the document and cross examine the witness about it.

However the item may only be admitted to impeach witness credibility.

Question 21

Rule & CA differences:

Past Recollection Recorded Rule

Answer 21

Refreshing a witness’s recollection using a document is permitted when (1) the witness had personal knowledge of the matter; (2) but is unable to recall the matter while testifying; (3) the writing was made by the witness or adopted by them; (4) while the event was fresh in the witness’s memory; and (5) the witness can attest that, when made, the writing was accurate.

*In CA this must be done prior to or during trial.

The adverse party has a right to have the document produced, inspect the document and cross examine the witness about it, if this occurs while the witness is on the stand. If this is done prior to the trial then the adverse party may request the document is the produced but it is not required.

Question 22

Can the documents be produced under Past Recollection Recorded Rule?

Answer 22

The adverse party has a right to have the document produced, inspect the document and cross examine the witness about it, if this occurs while the witness is on the stand. If this is done prior to the trial then the adverse party may request the document is the produced but it is not required.

Question 23

Types of Trial Objections

Overview

Answer 23

1. Assumes Facts not in Evidence
2. Calls for Narrative
3. Leading Question
4. Non-Responsive Answer
5. Speculation
6. Vagueness
7. Argumentative
8. Compound Question
9. Repetitive

Question 24

Assumes Facts not in Evidence

Trial Objections

Answer 24

Ex. “where were you when” “When did you stop”

A question that assumes as true, facts that have not been established is not permitted.

Question 25

Calls for Narrative

Trial Objections

Answer 25

Ex. “Tell me everything”

A question that calls for a narrative is open ended and requires more than a short response.

Question 26

Definition:

Leading Question

Trial Objections

Answer 26

Ex. permitted on cross/not on direct unless…

A question that suggests the answer within the question.

Question 27

Rule, Exception & CA Difference:

Leading Question

Answer 27

Direct Examination Rule: A leading question is not permitted on direct examination of a witness unless it is (a) clarifies background information; (b) the witness is hostile, an adverse party or identified with the adverse party; OR (c) the witness has difficulty remembering or communicating (due to age or a physical/mental condition). In CA: leading questions are only permitted on direct in the interests of justice.

Cross Examination Rule: Leading questions are generally allowed on cross examination.

Question 28

Non-Responsive Answer

Trial Objections

Answer 28

A non-responsive answer provides more information than the question asked for.

Question 29

Speculation

Trial Objections

Answer 29

Ex. “I’m pretty sure, I think”

A witness may only testify to personal knowledge and cannot speculate. A question that requires a witness to draw a conclusion or state an opinion that they are not qualified to make is not permitted.

Question 30

Vagueness

Trial Objections

Answer 30

An attorney is not permitted to ask vague or open-ended questions.

Question 31

Argumentative

Trial Objections

Answer 31

Ex. “You don’t really expect the jury to believe you, do you”

A question that is intended to provoke an argument rather than elicit a factual response, is not permitted.

Question 32

Compound Question

Trial Objections

Answer 32

A question that requires answers to multiple questions is compound and not permitted.

Question 33

Repetitive

Trial Objections

Answer 33

A question that has been asked and answered is not permitted, although judges may allow some repetition, particularly on cross examination.

Question 34

Impeachment

Answer 34

Impeachment is calling into question the credibility of the witness. A witness’s testimony Is challenged based on bias or prior inconsistent statements through evidence from the witness’s testimony, testimony of another witness or extrinsic evidence that contradicts the witness’s testimony.

Question 35

Which party may impeach a witness?

Answer 35

Any party including the party who called the witness may impeach the witness.

Question 36

Prior Inconsistent Statements

Answer 36

Prior inconsistent statements are admissible to impeach a material part of a witness’s testimony and a party does not need to disclose the contents of the prior inconsistent statement when examining the witness but on request it must disclose the statement to the adverse attorney.

Question 37

Define Extrinsic Evidence

Answer 37

External evidence/Outside evidence

Question 38

Extrinsic Evidence (FRE)

Answer 38

Extrinsic evidence is admissible only if (1) the witness is given the opportunity to explain or deny the statement; AND (2) the opposing party is given the opportunity to examine the witness about it.

This does not have to be before the evidence is admitted.

Question 39

Rule:

Extrinsic Evidence (CA)

Prior Inconsistent Statements

Answer 39

In CA extrinsic evidence must be excluded unless (a) the witness is given the opportunity to explain or deny; (b) the witness is not excused from further testimony; OR (c) the interests of justice so require it.

Question 40

Rule & Exception:

Prior Convictions (FRE)

Answer 40

Prior felony or misdemeanor convictions involving dishonest (a dishonest act or false statement) are always admissible.

Whereas felonies that do not involve dishonesty are admissible only if the crime is punishable by death of more than a year imprisonment and either (a) in a civil or criminal case the witness is not a D; OR (b) in a criminal case when the witness is a D but only if the probative value outweighs its prejudicial effect.

Question 41

10 Year Rule

Prior Convictions - FRE

Answer 41

If 10 years have passed since the later of the witness’s conviction or release from confinement evidence of the conviction is only admissible if (1) its probabtive value substantially outweighs its prejudicial effect AND; (2) reasonable written notice is given to the adverse party as to the intent to use the evidence.

Question 42

Can juvenile convictions be used against a witness?

Prior Convictions - FRE

Answer 42

Evidence of a Juvenile conviction can be used against witnesses who are not D’s if (1) it’s a criminal case; (2) an adult conviction would be admissible; AND (3) admitting evidence is necessary to fairly determine guilt or innocence.

Question 43

Is evidence of a conviction subject to a pardon or annulment admissible?

Prior Convictions - FRE

Answer 43

NO, Evidence of a conviction is not admissible if the conviction is subject to a pardon or annulment.

Question 44

Prior Convictions (CA)

Answer 44

Prior felony convictions involving moral turpitude are admissible to impeach subject to CEC 352 balancing.

Felonies that do not involve moral turpitude are not admissible.

Criminal cases with misdemeanors involving moral turpitude are admissible subject to CEC 352 balancing under Prop 8, otherwise they are not admissible.

Question 45

Define Moral Turpitude

Answer 45

Is a broad standard and includes crimes involving lying, violence, sex crimes and extreme recklessness.

Question 46

Rule & When Extrinsic Evidence is Admissible:

Bias

Answer 46

A witness’s bias, interest, motive or partiality is always relevant for impeachment. Extrinsic evidence is admissible but only after the witness has been questioned about the bias.

Question 47

Character Evidence for a Witness:

Reputation or Opinion Testimony

Answer 47

A witness’s credibility may be attacked by testimony about their reputation for having a character for untruthfulness or in the form of an opinion about their untruthfulness.

Note: Specific acts may only be brought up on cross examination and are limited by FRE 403 or CEC 352.

Question 48

Character Evidence for a Witness:

Specific Prior Bad Acts (FRE)

Answer 48

Specific instances of conduct may be used to attack a witness’s credibility on cross examination only if the conduct is probative of the witness’s character for truthfulness or untruthfulness.

Note: Extrinsic evidence can never be used to support these instances.

Question 49

Character Evidence for a Witness:

Specific Prior Bad Acts (CA)

Answer 49

Specific instances of conduct are admissible under Prop 8 only if the acts involved moral turpitude and extrinsic evidence is permitted on cross examination.

Question 50

Character Evidence for a Witness:

When can Extrinsic Evidence be used to prove Specific Prior Bad Acts - FRE vs CA?

Answer 50

FRE - Extrinsic Evidence can never be used.
CA - Extrinsic Evidence can be used.

Question 51

General Rule & Exceptions:

Excluding Witnesses

Answer 51

A party or the court may exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses. Some witnesses may not be excluded including (a) a party who is a natural person; (b) if a corporation is a party then the designated officer or employee; (c) a person whose presence is essential to a party’s case; OR (d) a person whose presence is permitted by statute.