Evidence 21-40

Question 1

In CA, when is evidence of Prior Convictionsadmissible to attack a witness’s character for truthfulness?

Answer 1

Felony — only convictions involving moral turpitude(subject to CEC 352 balancing).

Misdemeanor — only admissible: (1) in a criminal case, AND (2) if prior misdemeanor conviction involves moral turpitude.

Moral turpitude = crimes involving lying, violence, sex crimes, and extreme recklessness.

Priority: Medium

Question 2

When may a witness’s credibility be attacked on cross-examination with Specific Instances of Conduct (i.e. prior bad acts)?

Answer 2

Under the FRE: Only when:

The conduct is probative of the witness’s character for truthfulness or untruthfulness. (BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.)

In CA: Prior bad acts are only admissible under Proposition 8 if the acts involve moral turpitude.

Priority: Medium

Question 3

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

Answer 3

By:

Reputation testimonyabout the witness’s character for truthfulness or untruthfulness in the community; OR

Opinion testimonyabout the witness’s character.

**Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.

Priority: N/A

Question 4

May a witness’s ability to observe, remember, or relay facts accurately be attacked on impeachment?

Answer 4

YES, a witness may be impeached on these issues on:

cross-examination; OR

with extrinsic evidence.

Priority: N/A

Question 5

Under the FRE, how may a Hearsay Declarant’s credibility be impeached (when a hearsay statement has been admitted into evidence)?

Answer 5

By any evidence that would be admissible if the declarant had testified as a witness.

*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.

Priority: N/A

Question 6

When is Refreshing a Witness’s Recollection using a document permitted?

Answer 6

When:

The witness once had a personal knowledge of the matter,

But is unable to recall the matter when testifying.

In CA: The refreshing may be done prior to or during trial.

**Only the opposing party may offer the document into evidence.

Priority: Medium

Question 7

What is the Scope of Cross-Examination?

Answer 7

The subject matter of the direct examination(s); AND

Matters affecting the witness’s credibility.

Priority: Low

Question 8

When may a court take Judicial Notice?

Answer 8

When indisputable factsare either:

Commonly known in the community; OR

Readily capable of verification and cannot be reasonably questioned.

FRE: In civil cases, the court must instruct the jury to accept the facts as conclusive. In criminal cases, they must instruct the jury that they may or may not accept the noticed facts as conclusive.

CA: Judicially noticed facts are conclusive in civil & criminal cases.

Priority: Medium

Question 9

Trial Objections

What is a leading question, and when are they permitted on direct examination?

Answer 9

One that suggests an answer to a witness. They are allowed on direct when:

The witness is hostile, an adverse party (or identified with);

It clarifies background information; OR

The witness has difficulty remembering.

In CA: Leading questions are ONLY permitted on direct examination in the interests of justice.

Priority: Medium

Question 10

What is a Lay Witness?

When is Lay Witness testimony admissible?

Answer 10

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (FRE: competency is presumed, additionally. CA: the witness must understand the legal duty to tell the truth).

They must take an oath to tell truth, only testify to matters of personal knowledge, AND have the capacity to perceive, recall, and communicate.

Priority: HIGH

Question 11

When may a Lay Witness offer an opinion?

Answer 11

If it is:

Rationally based on the witness’s perception;

Helpful to clearly understand the testimony or to determine a fact in issue;
AND additionally, under the FRE:

Not based on scientific, technical, or other specialized knowledge.

Priority: HIGH

Question 12

When is Expert Witnesstestimony permitted?

Answer 12

When the:

Witness is qualified as an expert;

Opinion is helpful to the jury;

Witness believes in the opinion to a reasonable degree of certainty;

Opinion is supported by sufficient facts/data;
AND

Opinion is based on reliable principles/methods that were reliably applied.

Priority: HIGH

Question 13

Expert Testimony

What is reliability based on (FRE vs. CA)?

Answer 13

FRE Daubert/Kumho standard:

Reliability is based on the methodology’s: (1) Publication and peer review; (2) Error rate; (3) Testability; AND (4) Whether it is generally accepted in the field.

CA Kelly/Frye standard:

Reliability is based on whether a methodology is generally accepted in the field.

Priority: Medium

Question 14

What is Hearsay?

Answer 14

An out of court statement,

That is offered to prove the truth of the matter asserted.

*Hearsay is ONLY admissible if it falls under an exception.

*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).

Priority: HIGH

Question 15

What is Non-Hearsay?

Answer 15

An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.

Non-Hearsay includes:

Verbal acts of independent legal significance.

Statements to show the effect on the listener.

A prior inconsistent statement used to impeach.

Circumstantial evidence of the speaker’s state of mind.

Priority: HIGH

Question 16

What is a Statement by a Party Opponent?

(deemed non-hearsay under the FRE, and a hearsay exception under CA)

Answer 16

Any statement offered against an opposing party,

That either:

Was made by the party in an individual or representative capacity;

Is adopted or believed to be true;

Was made by an authorized person;

Was made by the party’s agent or employee; OR

Was made by the party’s co-conspirator in furtherance of the conspiracy.

Priority: HIGH

Question 17

Hearsay Exclusion

When are Prior Statements of Identification by a declarant witness deemed Non-Hearsay (under FRE and CA)?

Answer 17

FRE:

If the declarant testifies; AND

If the declarant is subject to cross-examination

CA: Prior statements made are an exception to the hearsay rule if:

It identifies someone who participated in the crime;

It was made at the time of the crime and was fresh in the witness’s mind; AND

Before the evidence of the statement is offered, they testify that they made the identification and that it was a true

reflection of his opinion at the time.

Priority: Low

Question 18

Hearsay Exceptions / Exclusions

When does a person’s silence constitute an Adoptive Admission?

Answer 18

When:

The person heard the statement; AND

A reasonable person would have denied the statement.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Priority: Medium

Question 19

Hearsay Exceptions / Exclusions

What is a Vicarious Admission?

Answer 19

Admissions made by:

An authorized spokesperson;

A principal or agent made during the scope of the agency relationship - (Not applicable in CA); OR

Co-Conspirators.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Priority: HIGH

Question 20

Hearsay Exceptions

What is a Statement Against Interest, and when is it admissible?

Answer 20

When:

it’s a statement made against one’s own penal, proprietary, or pecuniary interest when made;

the declarant has firsthand knowledge;

a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true; AND

the declarant is unavailable.

*In CA, statements made against one’s societal interests are also admissible.

**Under the FRE, if offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

Priority: HIGH