4) Witnesses + Testimonial Evidence Flashcards

1
Q

who can be a wit: CA

A

can NOT be a wit if:

1) incapable of expressing self so as to be understood (even w interp), or
2) incapable of understanding the duty to tell the truth

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2
Q

who can be a wit: CA vs FRE

A

CA: requires being able to express self + understanding duty to tell the truth

FRE: no such req, anyone can do it

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3
Q

who must take oath: CA

A

no formal oath (colloquy instead0, if:

1) child under age 10
2) dependent person w substantial cognitive impairment

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4
Q

who must take oath: CA vs FRE

A

CA: has exceptions for kids under 10 + ppl w substantial co gimpairments

FRE: everyone must take oath, no exceptions

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5
Q

judge/jury as wits: CA rule

A

ok judge or jury be a wit, as long as neither party objects

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6
Q

judge/jury as wits: CA vs FRE

A

CA: ok if no one objects

FRE: never ok

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7
Q

jury testifying post verdict: CA rule

A

ok testify re ANY improprieties or influences that may have affected (but still not how they influenced their reasoning)

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8
Q

jury testifying post verdict: CA vs FRE

A

CA: ok testify re any improprities/influences that may have affected

FRE ONLY re outside influences

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9
Q

producing the writing a wit used to refresh recollection: CA (+exception)

A

must be produced at hearing upon request of OPC

unless: writing not in possession/control of wit or party eliciting tmony

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10
Q

producing the writing a wit used to refresh recollection: CA vs FRE

A

FRE: only must produce if court determines nec for justice

CA: must produce upon request of opc

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11
Q

hypnosis to refresh recollection: CA rule: civil

A

civil: wit who has been hypnotized can’t testify

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12
Q

hypnosis to refresh recollection: CA rule: crim (+exception)

A

crim: wit who has been hypnotized can testify if
1) written record of pre-H recollection
2) hypnosis was video + licensed professional +
3) wit testifies only about things remembered before the hypnosis

exception: if crim-D has been hypnotized he can still testify

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13
Q

hypnosis: CA vs FRE

A

no FRE rule

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14
Q

impeachment: how (CA/FRE same)

A

1) cotnradiction
2) prior inconsistent st
3) bias, interest, motive
4) prior convictions
5) prior bad acts

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15
Q

use of prior inconsistent sts to impeach: CA

A

admissible both to impeach AND for its truth

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16
Q

use of prior inconsistent sts to impeach: CA vs FRE

A

CA: admissible both to impeach AND for its truth

FRE: admissible to imepach only, not for its truth (different rule–reqs st to have been made under oath for to be admissible for its truth)

17
Q

prior bad acts to impeach: CA

A

admissible if relevant in crim cases only
–must be moral turpitude
–subject to balancing test
(by prop 8 – otherwise was inadmissible)

18
Q

prior bad acts to impeach: CA how to prove

A

ok extrinsic evidence!!

19
Q

prior bad acts to impeach: CA how to prove (CA vs FRE)

A

CA: ok extrinsic evidence!

FRE: never extrinsic evidence

20
Q

prior bad acts to impeach: CA vs FRE

A

CA: crim cases only + moral turpitude + bal test

FRE: must bear on truthfulness, civ or crim, bal test

21
Q

prior bad acts to impeach: bal test: CA AND FRE

A

added risk of undue prejudice of bad act being used as improper ch evidence (so higher risk of undue prejudice)

22
Q

impeachment by prior felony conviction: CA

A
  • -felony
  • -involving moral turpitude
  • -352 balancing test (loosely includes how long ago)
23
Q

impeachment by prior felony conviction: CA vs FRE

A

CA: felony + moral turpitude + 352 balancing

FRE: depends on if dishonesty or not (dishonety: no balancing unless old, no dishonesty: balancing)

24
Q

moral turpitude: def

A

readiness to do evil

25
Q

moral turpitude: yes (exs)

A

1) most sex crimes
2) crimes of dishonesty (perjury, grand theft, receiving stolen property, tax evasion)
3) crimes of violence (assault, battery, murder, manslauthger, rape, spousal abuse, vandalism)
4) crimes gainst property (burglary, arson)
5) other serious crimes (escape, DRUG SALES, hit + run, kidnapping, extortion, statutory rape)

26
Q

moral turpitude: no (exs)

A

negligence/unintentional
involuntary manslaughter
drug POSSESSION

27
Q

misdemeanor conviction to impeach: CA rule

A
  • -inadmissible in civil cases

- -in crim case, bc of Prop 8 (tho would be inadmissible at CEC), yes in if moral turpitude + 352 balancing

28
Q

misdemeanor conviction to impeach: CA rule vs FRE

A

CA: if crim + moral turp + 352 balancing, yes

FRE: only if crime of disohesty (10 years or balancing) – otherwise misdemeanors out

29
Q

expert testimony: CA rule

A

Kelley/Frye

if novel scientific area/theory, must have gained GENERAL ACCEPTANCE in the relevant scientific community

30
Q

expert testimony: CA rule: result

A

will need published appellate case or full-blown evidentiary hearing to decide

31
Q

expert testimony: CA rule exceptions

A

Kelley/Frye does NOT apply to:

  • -med opinions
  • -non-scientific areas
32
Q

expert testimony: CA rule vs FRE

A

FRE: Daubert factors

CEC: Kelley/Frye – general acceptance in relevant scientific community

33
Q

expert: what can opinion be based on: CA rule

A

expert can base opinion on inadmissible evidence (ex. hearsay)

34
Q

expert: what can opinion be based on: CA rule vs FRE

A

FRE: sometimes can base it on inadmissible evidence but must do 703 balancing test which disfavors admision ( (probative value must substantially outweigh prejudicial effect)

CEC: ok base opinion on inadmissible evidence