Div. 6 Witnesses II

Question 1

Ch 5 - Method & Scope of Examination Art1, Definitions: CEC 760

What is a direct exam?

Answer 1

CEC 760

“Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.

Question 2

CEC 761

What is cross exam?

Answer 2

CEC 761

“Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.

Question 3

CEC 762

What is redirect?

Answer 3

CEC 762

“Redirect examination” is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.

Question 4

CEC 764

What is a leading question?

Answer 4

CEC 764

A “leading question” is a question that suggests to the witness the answer that the examining party desires.

Question 5

Ch 5, Art 2: Examination of Witnesses [765. - 778.]: CEC 765

Interrogation of witnesses?

Answer 5

CEC 765

(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.
(b) With a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure that questions are stated in a form which is appropriate to the age or cognitive level of the witness. The court may, in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness.

Question 6

CEC 766

Non-responsive answers?

Answer 6

CEC 766

A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.

Question 7

CEC 767

Rules re leading questions on direct?

Answer 7

CEC 767

(a) Except under special circumstances where the interests of justice otherwise require:
(1) A leading question may not be asked of a witness on direct or redirect examination.
(2) A leading question may be asked of a witness on cross-examination or recross-examination.
(b) The court may, in the interests of justice permit a leading question to be asked of a child under 10 years of age or a dependent person with a substantial cognitive impairment in a case involving a prosecution under Section 273a, 273d, 288.5, 368, or any of the acts described in Section 11165.1 or 11165.2 of the Penal Code.

Question 8

CEC 768

Exams re writings?

Answer 8

CEC 768

(a) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to him any part of the writing.
(b) If a writing is shown to a witness, all parties to the action must be given an opportunity to inspect it before any question concerning it may be asked of the witness.

Question 9

CEC 769

Exam re inconsistent statement?

Answer 9

CEC 769

In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.

Question 10

CEC 770

Rules re extrinsic evidence of inconsistent statement?

Answer 10

CEC 770

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
(b) The witness has not been excused from giving further testimony in the action.

Question 11

CEC 771

Refresh by writing?

Answer 11

CEC 771

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.
(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.
(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:
(1) Is not in the possession or control of the witness or the party who produced his testimony concerning the matter; and
(2) Was not reasonably procurable by such party through the use of the court’s process or other available means.

Question 12

CEC 772

Order of exam and exceptions?

Answer 12

(a)The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination.

(b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins.
(c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness.
(d) If the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party.

Question 13

CEC 773

Rules for cross of pty; non-party?

Answer 13

CEC 773

(a) A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.
(b) The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.

Question 14

CEC 774

Non-re-exam; Exceptions?

Answer 14

CEC 774

A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court’s discretion.

Question 15

CEC 775

Court exam of witnesses; Objections?

Answer 15

CEC 775

The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs.

Question 16

CEC 776

Rules for calling adverse witness?

Answer 16

CEC 776

(a) A party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.
(b) A witness examined by a party under this section may be cross-examined by all other parties to the action in such order as the court directs; but, subject to subdivision (e), the witness may be examined only as if under redirect examination by:
(1) In the case of a witness who is a party, his own counsel and counsel for a party who is not adverse to the witness.
(2) In the case of a witness who is not a party, counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified.
(c) For the purpose of this section, parties represented by the same counsel are deemed to be a single party.
(d) For the purpose of this section, a person is identified with a party if he is:
(1) A person for whose immediate benefit the action is prosecuted or defended by the party.
(2) A director, officer, superintendent, member, agent, employee, or managing agent of the party or of a person specified in paragraph (1), or any public employee of a public entity when such public entity is the party.
(3) A person who was in any of the relationships specified in paragraph (2) at the time of the act or omission giving rise to the cause of action.
(4) A person who was in any of the relationships specified in paragraph (2) at the time he obtained knowledge of the matter concerning which he is sought to be examined under this section.
(e) Paragraph (2) of subdivision (b) does not require counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified to examine the witness as if under redirect examination if the party who called the witness for examination under this section:
(1) Is also a person identified with the same party with whom the witness is identified.
(2) Is the personal representative, heir, successor, or assignee of a person identified with the same party with whom the witness is identified.

Question 17

CEC 777

Optional exclusion of witnesses?

Answer 17

CEC 777

(a) Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.
(b) A party to the action cannot be excluded under this section.
(c) If a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present.

Question 18

CEC 778

Rules after witness exclusion?

Answer 18

CEC 778

After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court’s discretion.

Question 19

Ch 6, Art 1: Credibility Generally [780. - 783.] CEC 780

To be considered re credibility?

Answer 19

CEC 780

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k) His admission of untruthfulness.

Question 20

CEC 782

Question 21

CEC 783

Question 22

Ch 6, Art 2: Attacking or Supporting Credibility [785. - 791.] CEC 785

Question 23

CEC 786

Answer 23

CEC 786

Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.

Question 24

CEC 787

Answer 24

CEC 787

Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

Question 25

CEC 788

Credibility attacks?

Answer 25

CEC 788

For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:

(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.
(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.
(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).

Question 26

CEC 789

Answer 26

CEC 789

Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.

Question 27

CEC 790

Answer 27

CEC 790

Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.

Question 28

CEC 791

Prior consistent statement?

Answer 28

CEC 791

Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or
(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.