Testimonial Evidence 1.

Competency of Witnesses- witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed competent unless evidence to the contrary. a. FRE rules of competency i. Personal knowledge ii. Declare he will testify truthfully b. California Rules of Competency i. Personal knowledge ii. Understand duty to tell the truth c. Dead mans act- a party/person interest in event is incompetent to testify to a personal transaction or communication with a deceased. Interest- lose or gain in judgment- NONE IN FRE 2. Form of Examination of Witness- judge can exercise control here to prevent waste of time, harassment a. Leading questions are generally improper on direct, okay on cross, elicit preliminary matter, when witness needs help or witness is hostile b. Improper questions and answers- misleading, argumentative, conclusionary, compound, harassing, embarrassing and answers that are nonresponsive can be STRICKEN c. Use of notes while testifying- generally not okay unless: i. Refreshing Recollection- a witness may use any writing or thing for the purpose of refreshing her present recollection. She may usually not read from the writing while she testifies because its not authenticated ii. Past Recollection Recorded- where a witness states that she has insufficient recollection of an event to enable her to testify, even after she has consulted writing, the writing itself may be read into evidence if foundation is laid. Foundation must prove: 1. Witness had knowledge at the time of facts in writing 2. Writing was made by witness or under her direction/or was adopted by her 3. Writing is accurate 4. She has insufficient recollection to testify without it iii. Whenever a witness has used Past Recollection Recorded- the adverse party is entitled to have the writing produced at trial, to cross examine witness about it and to introduce portions relating to witness testimony 3. Opinion Testimony- general policy of the law is to prohibit unless necessary or helpful. a. Opinion by Lay-must be rationally based, helpful to a determination of a fact at issue and not based on scientific technically or other specialized knowledge. In CALIFORNIA- doesnt have the actual requirement that the knowledge not be scientific or other specialized knowledge. b. Opinion by Expert- an expert can state an opinion if:

i. Subject matter is one where science, technical skills or other specialized knowledge is needed to assist trier of fact (relevant and reliable) ii. Witness is qualifies as an expert- possesses knowledge, skill, training, education, expertise iii. Expert possesses reasonable probability regarding his opinion AND iv. Opinion supported by proper factual basis 1. Personal observation 2. Facts made known to him at trial 3. Facts not personally known but supplied to him outside of courtroom and generally relied upon by experts in the field v. Okay to give opinion as to ultimate issue vi. Authoritative texts/treatises- can be cross-examined concerning statements contained in any publication established as reliable authority either by this expert or another. CAN BE USED TO IMPEACH AND FOR SUBSTANTIVE if: 1. Expert on stand when excerpt is read AND 2. Relevant portion is read into evidence but not received as exhibit c. CALIFORNIA - Opinion by Expert- Kelley-Frye. Admissible if: i. Scientific opinion is reliable and admissible only if based on scientific principles that are generally accepted in the relevant scientific field. 4. Cross Examination- of adverse witnesses is a matter of right in every trial but the scope of cross is matter of frequently. a. Limited to subject on direct and credibility of witness b. Bound by the witnesses answers on cross on collateral matters, but okay to use extrinsic on cross for: i. Bias ii. Interest iii. Conviction