Misc Distinctions

Question 1

Lay Witness Competency

Answer 1

W must understand oath in additional to personal knowledge and giving oath

Question 2

Hypnotized Witness

Answer 2

**All Cases: **1. Compentent only if testifying about matters recalled prior to hypnosis

Additional Criminal Case Reqs.:
1. Substance of memory preserved prior to hypnosis
2. Hypnosis video recorded
3. Hypnosis outside presence of law enforcement/prosecution/defense

Question 3

Refreshing Recollection

Answer 3

Adverse party always allowed to have: (1) writing produced at trial; (2) cross-x W about writing; (3) introduce portions into evidence even if refereshed prior to taking stand (only a right in FEd court if refereshed on stand)

Question 4

Reliability of Principles and Methods of Expert Witness

Answer 4

Kelly-Frye Test: whether generally accepted = little disagreement in the field (otherwise not satisfied) –> only one fator in Fed Rules

Question 5

Sequestration

Answer 5

Judge has discretion to sequester witnesses

Question 6

Self-Authenticating Docs

Answer 6

NOT Trade Inscriptions, Labels, or Business Records

Question 7

Best Evidence Rule

Answer 7

Called “Secondary Evidence Rule” in CA and duplicates and secondary evidence are admissible but oral testimony is not without valid excuse

Question 8

Privileges Generally

Answer 8

In CA there is a presumption of confidentiality when communication between parties

Question 9

CA Privilege b/w Attorney and Corp. Client if:

Answer 9

communication by agent and either (1) person is natural person to speak on behalf of corp. or (2) employee/agent did something for which corp. may be liable

Question 10

Spousal Immunity

Answer 10

Applies to All Cases, not just criminal cases

Question 11

Doctor-Patient Privilege

Answer 11

Exists and held by patient if:
1 Professional Relationship existed
2. Information was acquired for purposes of diagnosis or treatment
3. 3. Information was necessary for diagnosis or treatment
4. No exceptions apply: such as (i) patient put physical condition at issue, assistance sought to aid wrongdoing, dispute betweeen the two, patient waiver, or criminal prosecution

Question 12

Determinations of Preliminary Questions of Fact

Answer 12

Judge bound by rules of evidence (unlike FED)

Question 13

Judicial Notice

Answer 13

1. mandatory if fact of general knowledge or universally known
2. Conclusive in Civil and Criminal cases