CA: Testimonial Evidence, Credibility, Impeachment

California Competency Standard

The witness (1) is testifying based on personal knowledge; (2) took an oath or affirmation to tell the truth; and (3) understands their legal duty to tell the truth

California Hypnotized Testimony

A witness who has undergone hypnosis for restoring their memory is only competent to testify about matters that they recalled and related to other prior to the hypnosis. Additionally, in criminal cases, the CEC requires: (1) the substance of the prehypnotic memory must have been preserved in a writing or recording prior to the hypnosis; (2) the hypnosis must have been video recorded; and (3) the hypnosis must have been done outside the presence of law enforcement, the prosecution, and the defense

California Dead Man Act

California has no dead man act, so interested persons competent to testify to a personal transaction or communication with a deceased ARE competent to off the testimony against the representative or successor in interest of the deceased

Refreshing Recollection: Production

Whether refreshing was done before or during trial, if the opponent asks for the writing to be produced, the proponent must produce it. If the proponent does not have it and cannot obtain it by subpoena or other means, they do not have to produce

Expert Reliability: Kelly-Frye Standard

The reliability of scientific opinions is determined solely based on whether the opinion is based on principles that are generally accepted by experts in the field. Not affected by Prop 8 since it determines relevance. Does not apply to non-scientific opinions and medical opinions, the reliability of which is based on the facts and circumstances of the case

Learned Treatise Hearsay Exception

In California, a learned treatise is admissible only to show “facts of general notoriety or interest” found in published maps or charts, or in books of history, science, or art. This is almost never applicable and usually a learned treatise is admissible only on cross-examination of an expert witness

Exclusion and Sequestration of Witnesses

In California, the judge has discretion to grant or deny a party’s motion to sequester, but must not exclude witnesses in the categories exempted in the FRE.

Bolstering

In civil cases, a party is not permitted to bolster the testimony of their witness until the witness has been impeached (with some exceptions). In criminal cases, because of Prop 8, both the prosecutor and the defendant can bolster a witness’s credibility before it has been attacked

Foundation for Extrinsic Evidence in Prior Inconsistent Statements

In California, the opportunity to explain or deny an inconsistent statement must be given at some point in the trial, which may be before or after extrinsic evidence of the statement is introduced

Admissibility of Prior Inconsistent Statements

In California, prior inconsistent statements of a testifying witness are categorized as a hearsay exception, not an exclusion. The exception extends to all prior inconsistent statements, even if they were not made under oath

Main Considerations for Impeachment with Criminal Convictions

What types of convictions are admissible for impeachment purposes? Approach felony and misdemeanor separately. Does the court have discretion to exclude an otherwise admissible conviction?

Impeachment by Felony Conviction

In California, all felonies involving “moral turpitude” are admissible, but the court has discretion under CEC 352. Felonies not involving turpitude are inadmissible, and this is not affected by Prop 8 because it is a relevance question.

California “Crime of Moral Turpitude”

Crimes of moral turpitude involve lying, violence beyond simple assault, theft, extreme recklessness, or sexual misconduct. Negligence crimes and unintentional crimes are not crimes of moral turptitude

Form of Impeachment by Felony Conviction

In civil cases, the witness may be impeached only with the fact that they have been convicted of the felony. In criminal cases, Prop * allows evidence of the circumstances underlying the crime admissible if the proponent demonstrates that the evidence has any tendency to disprove credibility

Impeachment by Prior Misdemeanor Convictions

Inadmissible in civil cases. In criminal cases, convictions for misdemeanors involving moral turpitude can be admitted in criminal cases under Prop 8, subject to CEC 352 factors.

Impeachment by Older Convictions

California does not have a specific rule for old convictions, but courts always have discretion to exclude a conviction offered for impeachment under CEC 352, and this permits consideration of any factor bearing on probative value, including the age of the conviction

Impeachment with Bad Acts

Impeachment by bad acts is not permitted in civil cases. Prop 8 makes acts of moral turpitude admissible for impeachment in criminal cases. Both cross-examination and extrinsic evidence are permitted, subject to balancing under CEC 352

Rehabilitation with Prior Consistent Statement

A prior consistent statement can be used to rehabilitate an impeached witness: (1) if the charge is improper motive, the prior consistent statement can be admitted if it was made before the motive to lie arose; and (2) a prior inconsistent statement is admissible if the witness was impeached by a prior inconsistent statement and the consistent one was made prior to the inconsistent one. Prior consistent statements used in this regard are a hearsay exception, not a hearsay exclusion, in California