Examination and competency of witnesses – rules 601- 615 – 601 – general rules of competency – Every person is generally competent to be a witness…in a civil trial the laws shall be state laws. 602 – personal knowledge – A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Experts need not have personal knowledge. 603 – Oath Each person must take an oath to tell the truth, to awaken the witnesses consciousness and impress the witnesses mind with the duty to do the same 604 – interpreters – Interpreters must be experts, and they must make an oath to make a true translation. 605 – judge as a witness – A judge of the particular case may not be a witness in federal, In CA, a judge may be a witness in his own case, as long as there are no objections by either party…if an objection, then judge must call a mistrial. 606 – juror as witness – A juror may not be a witness in a case which that juror is sitting. A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juryor’s mind or emotions as influencing the juror’s decision. Except that a juror may testify as to any extraneous pressure to influence the outcome. Character evidence – Character or credibility evidence – Credibility evidence is a special type of character evidence. It shows a witness’ character for truthfulness or veracity to give credit or discount the testimony. When character evidence is used to show credibility, by either impeaching or rehabilitating the witness it is governed by rule 404a3- thereby directing to rules 607-609 404a3 – look at rules 607, 608, 609 § 607 – Who may impeach – The credibility of a witness may be attacked by any party, including the party calling the witness. §608 – evidence of character and conduct of witness – (a) – opininon and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to the limitation (1) the evidence may refer only to character for truthfulness or untruthfulness and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct – Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness character or truthfulness, other than conviction of crime as probided in rule 609, may not be probative of truthfulness or untruthfulnessm be inquired into on crossexamination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. § 609 – Impeachment by evidence of conviction of crime – (a) – for the purpose of attacking the credibility of a witness a. evidence of a witness has been convicted of a felony (1 year or more sentence) shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused, AND b. Evidenc that any witness has been convicted of a crime of dishonesty shall be admitted. (b) – Time limit – evidence is not admissible if more than 10 years has passed since the later date of conviction or release, unless notice has been given to use this information. (c) Pardons – if you have been pardoned, then it cant be used (d) Juvenile – cant be used, except exceptional circumstances… (e) Appeal pending has no effect on admissibility Propensity evidence – Propensity – is offered to show that a person with a particular trait or disposition is more likely to have acted in conformity with that character train on a particular occasion. There are 3 forms of propensity character evidence 1. Reputation a. Generally preferable. 2. opinion a. Generally preferable 3. specific acts – a. only allowed when the character or trait of character of a person is essential element in the charge, claim or defense proof may also be made on specific acts. When character is used to prove a fact in issue, as substantitive evidence – use 404, 405 §404 rules – a. character evidence generally. Evidence of a persons character or trait of character is not admissible for the puropose of proving action in conformity therewith on a particular occasion, EXCEPT: 1. Character of accused – evidence of a pertinent trait of character offered by the accused, or by prosecution to rebut… 2. character of alleged victim – evidence of a pertinent trait or evidence of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut that the alleged victim was the first aggressor. 3. as stated above…rules 607, 608, 609 – b. Other crimes – evidence of other crimes is not admissible to prove conformity therewith. IT is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided reasonable notice in advance of trial, that the prosecution tells the defense it intends to introduce at trial. § 405 rules – Methods of proving character –
a. reputation or opinion – in lal cases in which evidence of character or trait of charater of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. ON cross, inquiry is allowable into relevant specific instances of conduct. b. Specific acts – in cases which character or train of character is an essential element of a charge, claim or defense, proof may also be made on specific instances (mark furman saying Nigger in O.J.) Propensity exception is allowed for 2 reasons 1. benefit of a criminal defendant. They can use propensity, but this also opens the door to allowing the prosecution to rebut the character evidence . 2. use of character to impeach the credibility of a witness. – see rules 608, 609, 613 Acts are allowed when – 404 b – allows acts of the defendant to show something other than propensity, these include, motive, intent, identity, absence of mistake, knowledge, opportunity, and common scheme or plan. – often there will be a jury instruction saying that the evidence is not for propensity…but this is a problem, since it draws to attention the acts Rape and prior sexual acts by the defendant Rape admittance – Rule 412 – (a) the following evidence is not admissible in any civil or criminal proceding involving alleged sexual misconduct except as provided in subdivision (b), (c) 1. evidence offered to prove that any allegd victim engage in other sexual behavior. 2. Evidence offered to prove any allged victims sexual predisposition. (b) 1. in a criminal case the following is admissible i. Evidence of specific instance of sexual behavior by the alleged victim offered to prove that a person other tan the accused was the source of semen, injury or other physical evidence ii. Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution, and iii. Evidence the exclusion of which would violate the constitutional rights of the defendant 2. in a civil case, evidence offer dot prove the sexual behaivour or sexual predisposton of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and or unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible on;y of ot has been placed in controversy by the alleged victim. (c) – procedure to determine admissibility – 1. a party intending to offer evidence under subdivision (b) must – i. file a written motion 14 days before trial describing the evidence and its purpose ii. serve the motion of all parties and notify the alleged victim or their guardian 2. before admitting such evidence, there must be a hearing and afford the victim and parties to be heard 413 – a. in a criminal case, which the defendant is accused of an offense of sexual assault, evidence of another offense or offenses of sexual assault is admissible
b. in a case in which the govn’t intends to iffer evidence under this rule, the attorney for the govn’t shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the trial c. this rule cant limit other evidence rules d. sexual offense describes 1. sexual misconduct – 2. contact without consent between the D’s body and the genitals of another 3. deriving sexual pleasure or gratification from the infliction of death, bodily injury or pain on another 4. conspiracy to engage in the above. 414 – evidence of similar child molestation: Same as 413 for child molestation 415 – Civil cases – Same as above.