Pg 7

Question 1

What is unfair or undue prejudice?

Answer 1

Relevant evidence can be excluded if there is an undue tendency to suggest a decision on an improper basis such as bias, sympathy, hatred, contempt, retribution, or horror

Question 2

Should the 403 rule about undue prejudice be discussed every time?

Answer 2

No, only when there are facts to suggest that the jury will give a decision based on emotion or passion instead of logic and facts

Question 3

What is the California evidence code’s equivalent of FRE 403?

Answer 3

352. This requires that the prejudicial effect substantially outweigh the probative value before relevant evidence will be excluded, in terms of being inflammatory, confusing, or redundant

Question 4

Evidence can be excluded if it will mislead the jury, what does this mean?

Answer 4

If there’s a possibility that the jury will incorrectly evaluate the probative value of an item of evidence, usually by overvaluing it, it can be excluded. Ie: results of a lie detector test are usually overvalued

Question 5

What is the rule about exclusion of evidence if it would cause undue delay?

Answer 5

Evidence can be excluded if an unreasonable amount of time will be taken to present and clarify it, especially if the probative value is slight. Ie: bringing in 17 witnesses to say the same thing

Question 6

If the opposing party offers to stipulate to a fact, must you accept the stipulation?

Answer 6

No, a litigant is entitled to prove his case free from the defendant’s option to stipulate the evidence away, and can prove its case by evidence of its own choice

Question 7

If a defendant had three prior convictions for child molestation, but the current issue has nothing to do with that, and he offers to stipulate to the convictions without mentioning what they were, will the other party have to accept this stipulation?

Answer 7

A judge will likely allow it because otherwise undue prejudice by the jury would result if they knew the defendant was a child molester

Question 8

What are the factors that a judge will consider in deciding whether to allow a party to stipulate to evidence?

Answer 8

If the main reason not to stipulate is just to subject the opposing party to unfair prejudice and that party’s case would not be impaired by the stipulation (basically anytime 403 would apply)

Question 9

What is competency?

Answer 9

Characteristics that render a witness legally fit and qualified to give testimony in court

Question 10

What things are required for competency?

Answer 10

– personal knowledge
– declaration from the witness that he will answer truthfully
– ability to recollect what happened and to describe it

Question 11

Who decides if a witness is competent to take the stand?

Answer 11

This is solely determined by the court

Question 12

What are the four major elements of competency?

Answer 12

1. witness must have personal knowledge
2. witness must understand the duty to tell the truth
3. witness must be willing to declare by oath or affirmation and be willing to tell the truth
4. witness must be able to communicate

Question 13

Is competency hard to prove?

Answer 13

No, almost all witnesses will be competent to testify

Question 14

What is involved in the oath or affirmation element of competency?

Answer 14

• every witness must declare to testify truthfully by oath or affirmation, and
• must understand his duty to tell the truth
  – and understand the difference between truth/lie/fantasy

Question 15

What is an oath?

Answer 15

Formally calling on God and swearing to tell the whole truth

Question 16

What is an affirmation as opposed to an oath?

Answer 16

Statement that you will tell the truth under penalty of perjury

Question 17

What is the reason for requiring an oath or affirmation in order to prove competency?

Answer 17

To encourage the witness to tell the truth and to ensure a perjury punishment if he falsifies his testimony

Question 18

Who can administer an oath or affirmation?

Answer 18

The judge or a court clerk

Question 19

How do you show that a witness has personal knowledge of a matter before he testifies about it?

Answer 19

By showing that the witness actually observed, received, or recorded something, and can now recollect and narrate impressions from any of his senses that have a tendency to establish a fact of consequence

Question 20

What does it mean that bootstrapping is allowed when it comes to personal knowledge for competency?

Answer 20

Evidence to prove that a witness has personal knowledge can come from the witness’ own testimony

Question 21

What is the test to determine if a witness has personal knowledge of an event?

Answer 21

The impossibility test: the court will only reject the testimony if no reasonable trier of fact could believe the witness perceived something

Question 22

If it is later shown that there wasn’t personal knowledge of an event by the witness, what happens?

Answer 22

The testimony can be stricken

Question 23

In order for a witness to show that they had personal knowledge of an event, must they be absolutely certain about something?

Answer 23

No, it’s OK to say “I think, I believe, to the best of my recollection, I am not sure, my impression is, the best I can remember.“

Question 24

Must a witness relate conversations he heard or parole evidence he was involved in with verbatim accuracy to have personal knowledge for competency?

Answer 24

No, the substance of the language is enough

Question 25

Is it enough if a witness is competent to take the stand if they don’t have personal knowledge about an event?

Answer 25

No