Testimonial Evidence.

Question 1

Competency.

Answer 1

Both Federal and California law require 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.

Question 2

Grounds for disqualifying witnesses. Federal and California:

Answer 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 3

Expert opinion. Federal and California: 5 requirements for admissibility. Opinion must be:

Answer 3

1. helpful to jury,
2. witness must be qualified,
3. witness must believe in opinion to reasonable degree of certainty,
4. opinion must be supported by a proper factual
   basis, and
5. opinion must be based on reliable principles reliably applied to the facts.

Federal and California law differs on application of the last requirement to scientific opinions.

Question 4

Federal Daubert/Kumho Standard

Answer 4

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.

Question 5

California Kelley/Frye General Acceptance Standard

Answer 5

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.

Question 6

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?

Answer 6

Federal: Yes
CA: No, not generally accepted

Question 7

Learned treatise hearsay exception.

Answer 7

Federal: 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 8

Impeachment by Prior Inconsistent Statement of witness now testifying at trial. Federal and California:

Answer 8

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.

Question 9

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?

Answer 9

1) Relevant to impeach the witness by showing a prior inconsistent
2) Relevant to show the D had the green light

Federal: Admissible for impeachment, but inadmissible to show D had green light
CA: Admissible for all purposes

Question 10

Impeachment with Prior Felony Conviction. Federal:

Answer 10

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.

Question 11

Impeachment with Prior Felony Conviction: CA:

Answer 11

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.

Question 12

Moral turpitude =

Answer 12

crimes of lying, violence, theft, extreme recklessness, or sexual misconduct, but not crimes for merely negligent or unintentional acts.

Question 13

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?

Answer 13

Federal: Admissible to impeach and no discretion to balance
CA: Possibly Admissible to impeach - 1)Perjury involves moral turpitude; 2)Balancing of unfair prejudice versus probative value

Question 14

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?

Answer 14

Federal: Possibly Admissible
CA: Possibly Admissible - Involves moral turpitude of sexual misconduct, but probative value might not outweigh prejudicial value

Question 15

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 15

Federal: Possibly Admissible - Can impeach with felonies that don’t involve false statement, but got to balance unfair prejudice v probative value

CA: Inadmissible: 1) No moral turpitude - involuntary manslaughter involves an unintentional or negligent crime

Question 16

Impeachment with Prior Misdemeanor Convictions. Federal:

Answer 16

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.

Question 17

Impeachment with Prior Misdemeanor Convictions. CA:

Answer 17

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.

Question 18

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?

Answer 18

Federal: Admissible to impeach because crime of lying
CA: Inadmissible - no misdemeanor to impeach allowed in civil case

Question 19

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 19

Federal: Inadmissible - not a misdemeanor involving lying
CA: Possibly Admissible - Criminal case - Prop 8 Applies - all relevant evidence is admissible. 1) It involves moral turpitude (theft) and is thus relevant to impeach, 2) but subject to balancing of probative v prejudicial value

Question 20

Final points on conviction evidence (felony and misdemeanor). If the conviction is otherwise admissible under the above rules, extrinsic evidence…

Answer 20

can be used under Federal and California law to prove the conviction.

Question 21

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. How about CA?

Answer 21

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.

Question 22

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 22

Federal: Probably inadmissible - impeachment with an old conviction, unless the party offering the evidence shows probative value outweighs the prejudice - burden on offering party.
CA: Probably admissible - conviction impeachment has 2 steps: 1)involves moral turpitude 2) balance prejudice v probative value - the court has the discretion to exclude evidence if the objecting party shows unfair prejudice substantially outweighs probative value - burden on objecting party

Question 23

Non-Conviction Misconduct Bearing on Truthfulness.

Answer 23

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.

Question 24

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?

Answer 24

Federal: Admissible
CA: Inadmissible - and civil case so prop 8 has no bearing

Question 25

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?

Answer 25

Federal: Inadmissible - extrinsic evidence
CA: Admissible

Question 26

Prosecutor asks defendant if he stole office supplies at work.
Defendant admits to the theft. Admissible?

Answer 26

Federal: Inadmissible - not an act of lying
CA: Probably Admissible 1)Impeachment not recognized by evidence code, 2) Apply prop 8 because in Criminal case so all relevant evidence is relevant - moral turpitude stuff is relevant which theft is 3) balance prejudicial v probative value