Testimonial Evidence

Question 1

Competency

Answer 1

FRE & CEC: (i) PK; (ii) ability to communicate; (iii) recall what was perceived; (iv) take oath

CEC: also requires W understand legal duty to tell truth

CEC and recalling: Civil disqualifies hypnotizing to refresh; Criminal hypnotizing to refresh OK if police and not suggestive procedure

Question 2

Expert Opinion Testimony

Answer 2

FRE & CEC requirements: (i) helpful to jury; (ii) qualified; (iii) reasonable degree of certainty; (iv) factual basis; (v) reliable principles, reliably applied

CEC: Reliability = Generally accepted by experts in the field

CEC: Learned Treatises = needs general notoriety (almost never applicable)

Question 3

Impeachment w/ Inconsistent Stmt

Answer 3

FRE & CEC: NOT HS if offered to impeach

FRE: under oath than can also be offered for truth, otherwise just offered to impeach

CEC: HS Exception = All Inconsistent Stmt of W regardless of oath or not, are admissible to impeach AND for their truth

Question 4

Impeachment w/ Prior Felony Conviction

Answer 4

FRE: all felonies involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;

FRE: Felonies not involving lying must be balanced (prej. v. prob.)

EE = Admissible to impeach

CEC: all felonies involving “moral turpitude” are admissible subject to balancing

CEC: felonies not involving “moral turpitude = inadmissible

Moral Turpitude = lying, violence, theft, extreme recklessness, and sexual misconduct  NOT mere negligent or unintentional act

EE = Admissible to impeach

No 10 yr limitation

Question 5

Impeachment w/ Prior Misdemeanor Conviction

Answer 5

FRE: all misdemeanors involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;

FRE: All misdemeanors not involving lying = inadmissible

EE = Admissible to impeach

CEC: Misdemeanor Inadmissible in Civil

CEC: Misdemeanor of Moral Turpitude Admissible in Criminal subject to balancing

No 10 yr limitation

EE = Admissible

Question 6

Prior Bad Acts (PBA)(Non-Conviction)

Answer 6

FRE: PBA involving lying = Admissible in Civil AND Criminal subject to balancing

ONLY on Cross

EE = Inadmissible

CEC: PBA (regardless of moral turpitude) = ALWAYS Inadmissible in Civil

CEC: PBA of Moral Turpitude = Admissible in Criminal subject to balancing

Cross AND EE = Admissible