evidence - presentation.txt

• 1) Personal Knowledge (based on witness' senses)
• 2) Present Recollection - can't have forgotten by now
• 3) Communication - speak directly, or through translator
• 4) Sincerity - oath

• Lack of personal knowledge: blind W testifies D shot the victim.. testimony based on what she heard someone say
• Hearsay: blind W testifies sheriff told her that D shot the victim

• 1) qualify as expert
• 2) oath to make a true translation

• 1) Judge
• 2) Jury

no competency requirement for age

• Even someone deemed “insane” or convicted of perjury deemed competent
• (but can impeach later)

• A witness hypnotized by police to recall facts is permitted to testify under federal law.
• CA: in civil cases the hypnotized witness is incompetent; in criminal cases, the hypnotized witness may be competent to testify if special procedures aimed at avoiding suggestion are used

in a civil suit against a deceased’s estate, an interested party is not competent to testify about a transaction or conversation with the dead man.

• 1. Leading
• 2. Nonresponsive
• 3. Calls for a narrative
• 4. Assumes Facts Not in Evidence
• 5. Compound
• 6. Speculation
• 7. Misleading
• 8. Argumentative

• 1. Lack of foundation
• 2. Nonresponsive

• open ended, questions must be specific
• Worry is that witness may throw in irrelevant, prejudicial facts – “tell us everything that happened”;

Witness must answer the question, else you can move to strike

• question suggests answer
• DX: usually not allowed to lead the witness
• 1) Okay if witness is adverse party/controlled by adverse party
• 2) Okay to lead hostile witness
• 3) Okay if witness needs help (young, old, disabled, forgetful)
• CX: Permitted to lead witness on CX, but must stay within the scope of direct

Question can’t be answered w/o making an unintended admission

not really a question seeking an answer, it’s making a pt to the jury

requires single answer to more than 1 question

W lacks personal knowledge

doesn’t answer question asked

• Generally not permitted
• Anytime a Witness is reading a document out loud, it’s a hearsay issue (out of court stmt)

• 1) ask witness if seeing a record would refresh her memory
• 2) witness must read silently
• 3) Anything can be used to refresh recollection
• 4) BUT anything you used must be produced to the opposing party who can offer it into evidence
• Note: we assume what the witness is telling us what she remembers and not what is in the document

• (exception to the hearsay rule)
• Use if the attempt to refresh didn’t work. So now we need to try to admit the out-of-court statement in using a hearsay objection. If the exception applies, the document can be read to the jury.
• Requirements:
• 1) Witness once had personal knowledge of the facts;
• 2) Document was made by the witness or under the witness’ discretion, or was adopted by the witness at a time when the facts were fresh in the witness’ memory;
• 3) Document was accurate when made; and
• 4) Witness has insufficient recollection to testify as to matters contained in the document

• only admissible if
• 1) rationally based on the witness’ perceptions, and
• 2) helpful to the trier of fact.
• Lay opinion permitted as to: speed of auto, sanity, intoxication, emotions, value of witness’ property

• 1) Gives jury more information than would testimony limited to describing witness' perceptions.
• 2) Cannot be based on scientific or specialized knowledge.
• 3) Legal conclusions are not “helpful” – gives jury LESS information than testimony describing witness’ perceptions.

• 1) helpful to jury
• 2) expert is qualified
• 3) believes his opinion with reasonable certainty
• 4) supported by proper factual basis [foundation]
• 5) based on proper reliable principles that were reasonably applied

Expert is using her specialized expertise to tell jury something the jury could not figure out for themselves.

• 1) Just need specialized knowledge, don’t need a degree.
• 2) The opinion must match the expert’s area of expertise
• can be based on academic credentials or experience

the opinion is inadmissible as speculation

• 1) admitted evidence
• 2) personal knowledge
• 3) inadmissible evidence, if it would be reasonably relied upon by experts in this area

• [Fed]
• (Daubert/Kumho) requires reliable principles that are reliably applied:
• 1. published in journals/peer reviewed,
• 2. low error rate,
• 3. tested and subject to retesting,
• 4. reasonable level of acceptance
• [CA]
• (Frye) must be generally accepted by experts in the field; NOT altered by Prop 8 b/c this is considered a std of relevance
• only applies to scientific opinions; medical opinions is based on facts/circumstances of the case

• (exception to the hearsay rule)
• the jury doesn’t get the document, but the document can be read to the jury
• [FRE]
• admissible to prove anything stated therein if the treatise is accepted authority in the field.
• [CA]
• only admissible to show matters of general notoriety or interest (very narrow exception and almost never applicable, since you usually asked experts only about specialized issues)

• Evidence supporting witness’s credibility is inadmissible unless her credibility has been attacked first.
• [CA] Under prop 8, both the prosecutor and the defendant may bolster a witness' credibility before it has been attacked.

• 1) Prior consistent statement is not hearsay and admissible for ALL purposes (inc. for its truth) if made BEFORE event attacking credibility (bribe or inconsistent stmt)
• admissible to prove the witness is credible, and can also be used by the jury to assume the truth of what was asserted
• 2) Consistent stmts made AFTER event attacking credibility (bribe, etc.) inadmissible to support credibly (logically irrelevant)
• [FRE] admissible to prove both facts: non hearsay
• [CA] admissible to prove both facts: the evidence is hearsay but it is within the exception for prior consistent statements