Evidence - Presentation

  1. Witness Competency: witness' testimony must be based on?
    • 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
  2. Lack of Personal knowledge versus hearsay?
    • 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
  3. Translator for a witness, how to admit?
    • 1) qualify as expert
    • 2) oath to make a true translation
  4. who is automatically disqualified as a witness?
    • 1) Judge
    • 2) Jury
  5. What age does a witness have to be to testify?
    no competency requirement for age
  6. Can an insane person testify?
    • Even someone deemed “insane” or convicted of perjury deemed competent
    • (but can impeach later)
  7. hypnotized witnesses?
    • 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
  8. what is a dead man's statute?
    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.
  9. What are the objections to questions?
    • 1. Leading
    • 2. Nonresponsive
    • 3. Calls for a narrative
    • 4. Assumes Facts Not in Evidence
    • 5. Compound
    • 6. Speculation
    • 7. Misleading
    • 8. Argumentative
  10. What are the objections to answers?
    • 1. Lack of foundation
    • 2. Nonresponsive
  11. Objection: Calls for narrative
    • open ended, questions must be specific
    • Worry is that witness may throw in irrelevant, prejudicial facts – “tell us everything that happened”;
  12. Objection: Unresponsive
    Witness must answer the question, else you can move to strike
  13. Objection: Leading Question
    • 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
  14. Misleading
    Question can’t be answered w/o making an unintended admission
  15. Argumentative
    not really a question seeking an answer, it’s making a pt to the jury
  16. Compound
    requires single answer to more than 1 question
  17. Lack of Foundation
    W lacks personal knowledge
  18. Nonresponsive
    doesn’t answer question asked
  19. Witness use of documents during testimony?
    • Generally not permitted
    • Anytime a Witness is reading a document out loud, it’s a hearsay issue (out of court stmt)
  20. Refreshing recollection of a witness, procedure?
    • 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
  21. Recorded Recollection
    • (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
  22. Lay opinions, when is it admissible?
    • 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
  23. What is helpful to the trier of fact?
    • 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.
  24. Expert opinions, what requirements?
    • 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
  25. Expert opinions - what is helpful?
    Expert is using her specialized expertise to tell jury something the jury could not figure out for themselves.
  26. What makes an expert qualified?
    • 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
  27. What if the expert doesn't believe in his opinion to a reasonable degree of certainty?
    the opinion is inadmissible as speculation
  28. What may an expert base his opinion on?
    • 1) admitted evidence
    • 2) personal knowledge
    • 3) inadmissible evidence, if it would be reasonably relied upon by experts in this area
  29. what are the standards for proper reliable principles that were reliably applied?
    • [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
  30. Learned Treatises, admissible?
    • (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)
  31. When can you bolster witness' credibility?
    • 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.
  32. Bolstering with consistent statement, in case of a bribe/inconsistent stmt:
    • 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
Card Set
Evidence - Presentation
Evidence - Presentation