Testimonial Evidence

Question 1

What are the requirements of competency? FRE and CEC.

Answer 1

FRE and CEC:

(i) personal knowledge
(ii) have the ability to communicate
(iii) take an oath or make an affirmation to tell the truth
(iv) claim to recall what they perceived

CEC: (v) witness must also understand they have a legal duty to tell the truth

Question 2

What are grounds to disqualify a witness?

Answer 2

FRE and CEC: All witnesses are competent except for judges and jurors.

CEC only: Disqualifies a witness who was hypnotized before trial to help refresh recollection, except in a criminal case where witness hypnotized by police using procedures that protect against suggestion.

Question 3

What are the requirements for expert opinion?

Answer 3

FRE and CEC: Opinion must be:

(i) helpful to the jury
(ii) witness must be qualified
(iii) witness must believe in opinion to a reasonable degree of certainty
(iv) opinion must be supported by proper factual basis
(v) opinion must be based on reliable principles reliably applied to the facts—>CA uses different standard!!!!!!!! FRE: Daubert/Kumho CEC: Kelley/Frye

Question 4

What is the standard for determining reliability of scientific opinions, under FRE?

Answer 4

Daubert/Kumho Standard/Factors

(i) publication/peer review
(ii) error rate
(iii) results are tested and there is ability to retest
(iv) reasonable level of acceptance.

Question 5

What is the standard for determining reliability of non-scientific opinions, under FRE?

Answer 5

Reliability determined ad hoc looking at facts and circumstances of the case.

Question 6

What is the standard for determining reliability of scientific opinion, under CEC?

Answer 6

Kelley/Frye General Acceptance Standard:
Based on one factor: the opinion must be based on principles generally accepted by experts in the field.

Higher standard than Daubert! General acceptance required.

Prop 8 does not affect this standard, because it is a standard of relevance! This standard makes the determination if the evidence is reliable.

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

Question 7

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 7

FRE: Admissible under Daubert

CEC: Inadmissible under Kelley/Frye, because demand is GENERAL acceptance not merely a reasonable level of acceptance.

Question 8

Are learned treatises admissible?

Answer 8

FRE: Admissible to use learned treatise to prove anything if treatise is accepted authority in the field.

CEC: Only admissible to show matters of general notoriety or interest, meaning this exception is narrow and almost never applicable.

Question 9

Must an inconsistent statement of a witness, now testifying at trial, be under oath if used to impeach?

Answer 9

FRE: Yes. It must be given under oath at trial or deposition.

CEC: No, but may be hearsay if used to prove truth of the facts asserted.

Question 10

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 10

This is relevant to impeach witness AND to prove D had the green light

FRE and CEC: Admissible to impeach

FRE: Inadmissible to prove green light

CEC: Admissible to prove green light

Question 11

What prior convictions may you use to impeach a witness?

Answer 11

FRE: All felonies involving false statement (perjury, forgery, fraud) are admissible, no balancing of unfair prejudice except for old convictions…court may admit felonies not involving false statements but must balance

CEC: All felonies involving moral terpitude are admisslbe but court must balance…felonies not involving crimes of moral turpitude are not admissible

Question 12

Does Prop 8 allow non moral turpitude felonies to be admitted?

Answer 12

No because convictions must be a crime of moral turpitude to be relevant,.

Question 13

What is moral turpitude?

Answer 13

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

Question 14

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 14

Any time impeaching a witness who is a party, that impeaching evidence could be used by a jury to infer about conduct, this could be a problem

FRE: Admissible, no balancing (perjury)

CEC: Admissible but subject to balancing and taking into account the above

Question 15

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 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 15

FRE: must balance to admit

CEC: Admissible but subject to balancing

Question 16

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 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 16

FRE: Admissible but must be balanced (probative value v. prejudicial effect)

CEC: Unintentional act, therefore not a crime of moral turpitude and therefore inadmissible.

Prop 8 has no effect

Question 17

Are misdemeanor convictions admissible in federal court to impeach?

Answer 17

Yes, if they involve false statements and there is no balancing unless old convictions

Question 18

Are misdemeanor convictions admissible in California state court to impeach?

Answer 18

They are inadmissible to impeach, but because of Prop 8 they can be admitted in a criminal case if involving a crime of moral turpitude, subject to balancing.

Thus, inadmissible in a civil case, admissible in criminal case if balanced!

Question 19

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 19

FRE: Admissible, it was a misdemeanor involving lying and is not subject to balancing

CEC: Inadmissible to impeach period!

Question 20

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 20

FRE: Inadmissible, not a false statement misdemeanor

CEC: Admissible because of Prop. 8 and is subject to balancing

There is a balancing problem here because D testified is subject to impeachment regarding robbery, which is what he is charged with, this could be character evidence inferred to prove conduct.

Question 21

If a conviction is admissible under FRE or CEC rules, what can be used to prove the conviction?

Answer 21

If under 10 years old, extrinsic evidence

If older than 10 years:

FRE: It is inadmissible unless probative value outweighs prejudice

CEC: No such rule, but court may balance and use any factor, such as age of conviction, for consideration

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

FRE: Likely inadmissible because older than 10 years and the probative value likely does not outweigh prejudicial effect

CEC: Likely admissible, crime of moral turpitude and age of conviction is a factor in determination of balancing but not determinate

Question 23

Is non-conviction misconduct bearing on truthfulness admissible, in federal court?

Answer 23

Admissible in both criminal and civil cases, subject to balancing. Must be an act of lying.

Question 24

Can you introduce extrinsic evidence of non-conviction misconduct bearing on truthfulness in federal court?

Answer 24

No, must ask about conduct on cross-examination.

Question 25

Is non-conviction misconduct bearing on truthfulness admissible in California state court?

Answer 25

Inadmissible under CEC, but Prop 8 makes it admissible in criminal cases if relevant.

To be relevant the misconduct must be an act of moral turpitude, and is subject to balancing.

Question 26

Can you use extrinsic evidence to prove non-conviction misconduct bearing on truthfulness in California state court?

Answer 26

Yes, both extrinsic evidence and cross-examination available but again subject to balancing.

Question 27

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 27

FRE: Admissible, subject to balancing, since on cross it is okay

CEC: Not admissible, no such impeachment under CEC for non-conviction misconduct and this is a civil case where Prop 8 does not apply.

Question 28

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 28

FRE: Extrinsic evidence, not admissible

CEC: 1) Inadmissible under CEC, no such impeachment permitted for non-conviction misconduct BUT

2) Criminal case, Prop 8, Truth in the Evidence Amendment applies, therefore all relevant evidence is admissible.

This is relevant because it is an act of moral turpitude and therefore relevant and potentially admissible subject to

3) Balancing of probative value v. unfair prejudice.

Question 29

Prosecution for bank robbery. Defendant testifies and denies involvement. Prosecutor asks defendant if he stole office supplies at work.
Defendant admits to the theft. Admissible?

Answer 29

FRE: Not admissible, b/c only type of non-conviction misconduct admissible under FRE are acts of lying

CEC: 1) Inadmissible b/c no such impeachment permitted BUT
2) Criminal case, Prop 8 applies

This is relevant b/c act of moral turpitude, but subject to

3) Prejudicial effect v. probative value