Testimonial Evidence Flashcards
Witness Competency
Fed
CA
FRE: Witness must have personal knowledge of the matter about which they will testify, and must swear or affirm to tell the truth.
CA:
CEC generally same as Federal Rule. Witness also must understand their legal duty to tell the truth.
USE OF HYPNOSIS
FRE: No corresponding Federal Rule.
CEC:
In California, witness who was hypnotized for the purpose of restoring memory is competent to testify only about matters that they recalled and related to others prior to the hypnosis.
- In criminal cases, CEC imposes additional requirements, including: (1) the substance of the prehypnotic memory must have been preserved in a writing or recording prior to hypnosis; (2) the hypnosis must have been video recorded; and (3) the hypnosis must have been done outside of the presence of law enforcement, prosecution, and defense.
DEAD MAN ACTS
There is no federal Dead
Man Act, although many
states have these statutes.
California does not have a
Dead Man Act.
REFRESHING
RECOLLECTION
FRE: Witness may refresh their memory while looking at a writing.
If witness refreshed their memory WHILE on the stand, an adverse party is entitled to have the writing produced at trial and to use and introduce relevant portions.
But if witness refreshed their memory BEFORE trial, it is within court’s discretion to require production.
CA:
Under CEC, it does not matter whether the refreshing was done before trial or during trial—if the opponent asks for the writing to be produced, the proponent must produce it (unless they do not have it and cannot obtain it by subpoena or other means).
EXPERT OPINION TESTIMONY— DETERMINING RELIABILITY
FRE:
When federal courts determine the reliability of scientific or non-scientific opinions (Daubert-Kumho), they examine the expert’s theory or methodology and can consider various factors, including:
* Whether it has been tested;
* Publication/peer review;
* Error rate; and
* Whether it is generally accepted in the relevant field.
CEC:
When California courts determine the reliability of scientific opinions (Kelly-Frye), only one factor is considered:
* Whether the opinion is based on scientific principles that are generally accepted in the relevant scientific field. This standard does not apply to non-scientific opinions. The reliability of a non-scientific opinion is based on the facts and circumstances of the case.
EXCLUSION AND SEQUESTRATION
OF WITNESSES
FRE: The judge must grant a party’s motion to exclude witnesses, except for those in the exempt categories.
CA:
CEC gives the judge discretion to grant or deny a motion to exclude witnesses (but as under the Federal Rule, a judge must not sequester any witness in an exempted category).