Testimonial and Documentary Evidence Flashcards
Rule for testimonial witnesses?
Testimonial witnesses must be competent, meaning they have “personal knowledge” of an observation (perceived with senses) that they presently recall.
Other rules for testimonial witnesses?
Must be able to communicate it and appreciate the requisite oath [CA: or “legal duty to be truthful”].
Personal knowledge questionable: burden on opposing counsel to prove RP would believe they perceived it.
Exceptions: (1) trial’s judge, (2) jury (unless re: tainted) [or (3) CA: hypnotized other than by police/criminal trial/proper procedures].
Rule for “lay witness” testimony?
The opinion of a lay witness is only admissible if it is rationally based on their perception, helpful to the jury, and not based on scientific/specialized knowledge.
Traditional categories include: (1) general appearance/condition of a person, (2) intoxication, insanity, emotional state, (3) spear of car/object, (4) value of their goods/services, (5) voice or handwriting (prior familiarity).
Rule for expert opinion testimony>
Expert opinion is admissible if it is helpful to the jury, the witness is qualified as an expert (can be on-the-job training), the expert witness is reasonably certain of his conclusion (no guesses), supported by a proper factual basis and is the result of reliable scientific principles reliably applied to the facts.
California has retained the Kelley-Frye standard for scientific (non-medical other expert opinion) which requires that the expert’s methods be generally accepted by experts in the field.
Opinion re: defendant’s mental state in criminal case never OK.
What is the best evidence rule?
Where a witness is testifying as to the contents of a writing, and those contents are in fact at issue, the best evidence rule requires that the writing be admitted into evidence unless it has been lost or destroyed not due to any intentional misconduct of the party seeking to introduce the evidence.
Best evidence rule - what if the witnesses evidence comes only from reading that document?
May not testify to contents unless it’s shown to be unavailable.
Best evidence rule - witness has independent knowledge?
May testify based on perception that’s independent of the writing (actually no best evidence rule).
Voluminous documents exception?
If too large to bring in all originals, witness may summarize contents (provided everything is available for inspection)
What types of writings can be admitted under the best evidence rule?
Writings may be recordings, videos, photos. Can be original or duplicate/photocopy (but not handwritten copy, unless CA)
What is the rule when a witness cannot remember?
“Past Recollection Evidence”
When a witness cannot remember, they can attempt to “refresh” their recollection with any writing, that must be read silently and returned before trying again.
If still unable to recall, they may read aloud to the jury (i.e., it is “read” into the record).
(Exception: on initial review, opposing party only may opt to admit to evidence.
If such writing is hearsay (aka statement offered to prove TOMA) that was (1) an accurate record they created*, (2) of facts they had personal knowledge of, (3) while still fresh in their mind and (4) that they no longer remember – then it may be admitted under an exception to hearsay rules.
*Created by them / under their direction / adopted (did/said something to show agreement with contents).
What are the objections during questioning?
(1) Calls for narrative answer (can object and ask for specific answer)
(2) Unresponsive answer (beyond the question) - motion to strike [CA: both parties can move to strike]
(3) Leading - only on cross-examination
(4) Question assumes fact not yet established in evidence
(5) Argues a fact in issue - should only elicit a response
(6) Compounded question - can only ask one at a time
(7) Substantive objection - violates an evidence rule.
When are leading questions prohibited?
On Direct Examination: Are NOT permitted unless adverse party, hostile witness, needs help (minor, cognitive impairment) or unimportant matters (“you’re an accountant, is that right?”
On Cross Examination: ARE permitted but must stay within the scope of direct examination.
How does questioning differ between direct and cross examination?
Direct - structured, but relatively open ended, questions about relevant matters.
Cross - limited to subject matter of direct examination and credibility.
