Testimonial Evidence

Question 1

1. ) How to establish Competency in Both Federal and California law
2. ) Grounds for disqualifying witnesses in Federal and California:

Answer 1

1. ) requires witnesses testify based on personal knowledge, have the ability to communicate, take an oath or make an affirmation to tell the truth, and claim to recall what they perceived. California: witness also must understand legal duty to tell the truth.
2. ) All witnesses are competent except for judge and jurors. California also disqualifies witnesses who were hypnotized before trial to help refresh recollection except, in a criminal case, witness hypnotized by police using procedures that protect against suggestion.

Question 2

Expert Opinion

1. ) Expert opinion. Federal and California: 5 requirements for admissibility.
   * Federal and California law differs on application of the last requirement to scientific*
   * opinions.*
2. ) Federal Daubert/Kumho Standard:
3. ) California Kelley/Frye General Acceptance Standard:
4. ) Murder prosecution. Defendant is Professor Gold. Prosecution expert offers to testify that a new DNA testing technique reveals perpetrator must be a bald law professor. While the validity of the technique is not generally accepted among scientists in the field of genetics, it has been peer reviewed and published in scientific journals, has been tested and is subject to retesting, has a low error rate, and has a reasonable level of acceptance. Admissible?
5. ) Learned treatise hearsay exception. Federal:

Answer 2

1,) Opinion must be (i) helpful to jury, (ii) witness must be qualified, (iii) witness must believe in opinion to reasonable degree of certainty, (iv) opinion must be supported by a proper factual basis, and (v) opinion must be based on reliable principles reliably applied to the facts.

2. ) Reliability of scientific opinions determined by four factors: publication/peer review, error rate, results are tested and there is ability to retest, and reasonable level of acceptance. As to non-scientific opinions, reliability determined ad hoc looking at facts and circumstances of the case.
3. ) Reliability of scientific opinions determined by one factor: the opinion must be based on principles generally accepted by experts in the field. This standard is not altered by Propostion 8 because it is a standard of relevance. (Remember, Proposition 8 only makes evidence admissible if it is relevant.)

Kelley/Frye inapplicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.

4. ) Federal- Yes; California- No, need general acceptance
5. ) Admissible to prove anything if treatise is accepted authority in field. California: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.

Question 3

Evidence of Witness Credibility: Impeachment

Impeachment by Prior Inconsistent Statement of witness now testifying at trial. (Rule)

1. ) Action for personal injuries in auto accident. Plaintiff’s witness testifies defendant ran the red light. On cross, defendant asks “Didn’t you tell the police that defendant had the green light?” The witness answers “Yes.” What is this relevant to prove? What is it admissible to prove?
2. ) Same case. On cross, defendant asks “Didn’t you testify at your deposition that defendant had the green light?” The witness answers “Yes.” What is this admissible to prove?

Answer 3

Federal and California: Not hearsay if offered only to impeach. Federal: If given under oath at trial or deposition, also not hearsay to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.

California: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath.

1. ) Relevant to impeach the witness and relevant to show D had the green light. Federal: It is admissble to impeach. inadmissible to prove the D had the green light. California: Admissible to impeach. Also admissble to prove the D had the green light. It would be hearsay if offered for that purpose but broad exception covers all prior inconsistent statements of a witness.
2. ) Admissible for all purposes both federal and California

Question 4

Impeachment with Prior Felony Conviction. (Rule for Fed and Cali)

1. ) What is moral turpitude?
2. ) Prosecution for tax fraud. Defendant testifies and admits his tax return did not report all his income, but claims this was unintentional. Prosecution offers evidence Defendant previously was convicted of felony perjury in an unrelated case. Admissible in federal and state court to impeach Defendant as a witness? Does court have discretion to balance probative value against unfair prejudice?
3. ) Same case. Prosecution offers evidence that Defendant was previously convicted of felony child molestation in an unrelated case. Admissible in federal and state court to impeach Defendant as a witness? Does court have discretion to balance probative value against unfair prejudice?
4. ) Same case. Prosecution offers evidence Defendant was previously convicted of felony involuntary manslaughter in an unrelated case. Admissible in federal and state court to impeach Defendant as a witness? What is the effect of Prop. 8 in California?

Answer 4

Federal: All felonies involving false statement (e.g. perjury, forgery, fraud) are admissible…no balancing of unfair prejudice against probative value except for old convictions (see p. 51). Convictions for felonies not involving false statement may be admissible but court must balance.

California: All felonies involving “moral turpitude” are admissible but court must balance; felonies not involving moral turpitude are inadmissible in California. Prop. 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.

1. ) Moral turpitude = crimes of lying, violence, theft, extreme recklessness, or sexual misconduct, but not crimes for merely negligent or unintentional acts.
2. ) Federal- its admissible to impeach the witness and there is no discretion to balance because it is a conviction for a crime of lying. California- possibly admissible. Is if a crime of moral turpitude? (Yes it is a crime of moral turpitude). Then you have to balance unfair prejudice with probabtive value.
3. ) Federal- felony conviction that doesnt involve lying so its possibly admissible but now you gotta balance unfair prejudice with probative value. California- Is an impeachment with a felony crime of moral turpitude so must balance unfair prejudice with probative value.
4. ) Federal- Possibly admissible in federal law. Wasn’t a felony crime of lying so do balance test. California- inadmissible to impeach the witness. Wasn’t a crime of moral turpitude(was a negligent, involuntary act) so not admissible to impeach the witness.

No prop 8 does not change this because if it doesn’t involve moral turpitude, the Cali court says its not relevant.

Question 5

Impeachment with Prior Misdemeanor Convictions. (Rule for Fed and Cali)

1. ) Action for breach of contract. Defendant testifies he never entered into a contract with plaintiff. On cross-examination, plaintiff asks “Isn’t it true that you were convicted last year of a misdemeanor for lying on your application for a driver’s license?” Defendant answers “Yes.” Admissible in federal and state court?
2. ) Prosecution for bank robbery. Defendant testifies he was in another city when the robbery happened. On cross-examination, prosecutor asks, “Isn’t it true that you were convicted last year of misdemeanor theft of a church poor box?” Defendant answers, “Yes.” Admissible in federal and state court?

Answer 5

Federal: All misdemeanors involving false statement are admissible…again there is no balancing of unfair prejudice against probative value except for old convictions. All other misdemeanor convictions are inadmissible to impeach.

California: The CEC makes misdemeanor convictions inadmissible to impeach. But because of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct), subject to balancing probative value v. unfair prejudice. This means misdemeanors are inadmissible in California to impeach in a civil case.

1. ) Federal- Admissible because it is a conviction for a crime of lying. California- Indamissible under Cali Law. Indamissible under Prop 8
2. ) Federal- indamissible because theft is not a crime of lying. California- Possibly admissible. California Evidence Code (CEC) would exclude this evidence. HOWEVER, Prop 8 would admit this evidence because it is “relevant” and is a crime of moral turpitude. Would need to balance unfiar prejudice and probative value.

Question 6

Final points on conviction evidence (felony and misdemeanor). (10 year rule)

1.) Prosecution for bank robbery. Defendant testifies and denies involvement. Prosecutor offers a certified copy of a judgment showing defendant was released from prison in 1988 after serving time for felony perjury. Admissible?

Answer 6

If the conviction is otherwise admissible under the above rules, extrinsic evidence can be used under Federal and California law to prove the conviction. If the conviction is otherwise admissible under the above rules, but it is more than 10 years since the conviction or release from prison (whichever is later), it is inadmissible under Federal law unless probative value outweighs prejudice.

No such specific rule in California. But under above rules California courts may balance, which permits consideration of any factor bearing on probative value, including age of conviction.

1.) Federal- Probably inadmissible because the probative value will probably not substantially outweigh prejudice.

California- probably admissible. Because it is a crime of moral turpitude and need to apply the “usual” balancing. becuase objecting party would need to show unfair prejudice substanitallly outweighs probative value.

Question 7

Non-Conviction Misconduct Bearing on Truthfulness.

1. ) Action for breach of contract. On cross of plaintiff, defense asks “Isn’t it true you lied on your driver’s license application?” Plaintiff answers, “Yes.” Admissible?
2. ) Prosecution for bank robbery. Defendant testifies and denies involvement. Prosecutor asks defendant about lying on his driver’s license application but defendant denies it. Prosecutor offers the application into evidence. Admissible?
3. ) Same case. Prosecutor asks defendant if he stole office supplies at work. Defendant admits to the theft. Admissible?

Answer 7

Federal: Admissible in civil and criminal cases, subject to balancing; must be act of lying; extrinsic evidence inadmissible but may ask witness about her misconduct on cross.

California: Inadmissible under CEC but Prop 8 makes it admissible in criminal cases if relevant; to be relevant the misconduct must be act of moral turpitude (lying, violence, theft, extreme recklessness, or sexual misconduct); both cross-examination and extrinsic evidence permitted, subject to balancing.

1. ) Federal law- Yes is admissble. No extrinsic evidence will be permitted. California- Not admissible. Not a conviction and Prop 8 wont apply because its civil case.
2. ) Federal Law- Federal Law; inadmissble in federal law because you cant intro extrinsic evidence of non conviction involving a lie. Cali- possibly admissible. CEC would not recognize this method of impeachment. However, prop 8 would allow all relevant admissible in criminal case because its a conduct involving moral turpitude.
3. ) Federal law- Inadmissible because it is not an act of lying. California- possibly admissible. CEC wouldn’t allow this method of impeachment. Prop 8 would since it is a an of moral turpitude. Then do balancing test