Improper Questions & Opinion Testimony
Lay witness testimony is admissible only if: (1) ____ ___ on the witness's perception, (2) ____ to a clear understanding of her testimony or to the determination of a fact in issue, and (3) not based on ____, ____, or other ____ _____.
(1) Rationally based
(2) Helpful
(3) Scientific, Technical, or Specialized Knowledge
The scope of cross-examination is generally limited to (1) the scope of ___ ___, including all reasonable inferences that may be drawn from it; and (2) testing the ____ of the witness.
(1) Direct Examination
(2) Credibility
A prior inconsistent statement is considered hearsay and therefore cannot come in for its truth, unless: (1) it was given under ___ at a ___ proceeding, or (2) it was an ___ by a party. In California, a prior inconsistent statement is ___ even if not given under ___ at a ___ proceeding.
Oath
Formal
Admission
Admissible
Oath/Formal
Extrinsic evidence to prove past bad acts is not permitted. However, a witness may be interrogated upon ___-___ in ___ ___ with respect to an act of misconduct relating to ____. An arrest itself ___ a bad act and ___ permissible for impeachment purposes.
Cross-Examination
Good Faith
Truthfulness
Isn't
In order for a communication to be privileged, it must have been presumed to have been made in ____. Additionally, any privilege is waived by: (1) ___ to claim the privilege, (2) ___ disclosing privileged information by the privilege holder, or (3) a ___ provision that waives in advance the right to claim a privilege.
Confidence
Failure
Voluntarily
Contractual
Expert opinion may be based on: (1) ____ observation, (2) facts made known to the expert at ____, and (3) facts not known personally but supplied to the expert outside the courtroom and of a type reasonably ____ upon by ____ in that particular field.
(1) Personal
(2) Trial
(3) Relied/ Experts
____ matters are matters not independently relevant to the outcome. Cross-examiner is generally bound by the answers of the witness as to ___ matters. However, certain impeachment matters (bias, conflicting interests, prior convictions, etc.) may be developed through the use of extrinsic evidence.
Collateral
Evidence that a witness is ___ or has an interest in the outcome of the suit can be introduced to show that the witness has a ___ to ___ or ____.
Biased
Motive to Lie or Exaggerate
A witness may be impeached by showing that she has a poor ___ for ___ in her business circles or the general community. The impeaching witness may state her own opinion as to the character of the witness for truth, however, the impeaching witness may not discuss ___ ___ ___ involving deceit or lying.
Reputation / Truthfulness
Specific Prior Acts
Attorney/Client privilege includes: (1) ___ communications between attorney and client, (2) ___ prepared by the attorney for the client, and by the client for the attorney. ___ prepared by an attorney for her own use are not subject to discovery outside of cases of ___ ___.
Written
Documents
Documents/ Extreme Necessity
Expert opinions are admissible if (1) the subject matter is one where ___, ___, or other ___ ___ is relevant and reliable, (2) the witness is ____ as an expert, (3) the expert possesses ___ ___ or probability regarding her opinion, and (4) the opinion is supported by a proper ___ ___.
(2) Qualified
(3) Reasonable Certainty
(4) Factual Basis
A party may not ___ the testimony of a witness until the witness has been impeached by the other side. In California, one cannot ___ before impeachment in ___ cases, however, can ___ anytime in ____ cases.
Bolster
Civil
Criminal
A witness may be impeached by proof of a conviction for __ and __ involving __, __, or __ statement. The conviction must be less than ___ years since the date of conviction or date of release from confinement. In these instances, the judge has no ___ to prevent a witness from being impeached for such crimes.
Misdemeanors and Felonies
Dishonest, Deceit or False Statement
10 years
Discretion
Methods of Rehabilitation include: (1) Explanation on ___, (witness may clarify facts brought out on cross), (2) Good ___ for ___ (when the witness's veracity has been attacked), and (3) ___ ___ Statement made by the Witness (only when the witness was charged with lying or exaggerating).
(1) Explanation on Redirect
(2) Good Reputation for Truth
(3) Prior Consistent Statement Made by the Witness
The spousal immunity privilege applies in ___ proceedings and lasts ___ the marriage. The spouse is protected from testifying about __-__ events and __-__ events. The privilege belongs to the ___ spouse, so she may ___ to testify against the other spouse.
During
Pre-Marital and Post-Marital
Testifying
Voluntarily
A conclusion qualifies as scientific knowledge if it is based upon scientific methodology, and determine whether or not it does entails weighing several factors, including: (1) whether the theory/technique is _____, (2) whether it has been ___ to ____ ____, (3) the rate of ____, (4) the degree to which the theory/technique is accepted by the relevant ___ ___, and (5) the ___ and control that exist with respect to its operation. This is called the ____ ____. In California, we use the __ __.
(1) Testable
(2) Subject to Peer Review
(3) Error
(4) Scientific Community
(5) Standards
Daubert Test/ Kelly Frye
Any party may impeach any witness through __ __, or __ __ like the testimony of other witnesses or documents, except in the case of ___ ___ of ___.
Cross-Examination
Extrinsic Evidence
Specific Instances of Misconduct
When impeaching a defendant by proof of a prior felony not involving dishonesty, deceit, or false statements, the prosecution must show that the conviction's ___ ___ ___ its ___ ___. This is to protect the defendant's __ amendment right. For all other witnesses, the prior conviction's ___ __ must not be ___ __ by its ___ ___.
Probative Value Outweighs Its Prejudicial Effect
6th Amendment
Probative Value must not be Substantially Outweighed by its Prejudicial Effect
A Prior Statement of Identification made by a witness can be offered to __ a witness, __ a witness or for its truth, so long as the witness who gave the ID is __ to ___ at ___ and be available for ___-___.
Impeach/ Bolster
Available/ Testify/ Trial/ Cross-Examination
Confidential information communicated between a client/patient and a psychotherapist or social worker is privileged unless: (1) patient's ___ ___ is in ____, (2) services were sought to aid in a __, ___, or to escape ____, or (3) case involves a ___ of ___ between the therapist and the patient.
(1) Mental Condition is in Issue
(2) Crime, Fraud, or to Escape Apprehension
(3) Breach of Duty
The following types of questions are improper and are therefore not permissible under any circumstances: (1) ____ questions (cannot be answered without making an unintended admission), (2) ____ (requiring a single answer o more than one question), (3) ____, (4) _____, (5) _____, unduly harassing or embarrassing, (6) ___ ___ not in evidence.
(1) Misleading
(2) Compound
(3) Argumentative
(4) Conclusory
(5) Cumulative, Unduly Harassing or Embarassing
(6) Assume facts not in evidence
Methods of Impeachment include: (1) __ __ __, (2) ___ or Interest, (3) __ __, (4) ___ __ of ___, (5) ___ or ___ Evidence, (6) Sensory Deficiencies, or (7) ____ matters.
(1) Prior Inconsistent Statemen
(2) Bias or Interest
(3) Prior Conviction
(4) Specific Acts of Misconduct
(5) Opinon or Reputation Evidence
(6) Sensory Deficiencies
(7) Collateral Matters
A judge has no discretion to let in a prior conviction if the crime was (1) ___, (2) ____, or (3) not ____.
(1) Pardoned
(2) Expunged
(3) Not Relevant
As a general rule, objections at trial should be made ___ the question, but ___ to the answer if the question calls for evidence that is inadmissible. Failure to object is considered to be a ____ and inadmissible evidence will be admitted. The examining counsel (but not opposing counsel) may __ to ___ a witness' non-responsive answer (an answer to either a question that was not asked or one that was not an answer at all)
Waiver
Move to Strike
In order for a confidential marital communication to be privileged, the marital relationship must have existed when the communication was made. ___ will not destroy the privilege, but communications made after ___ are not privileged. Furthermore, ___ spouse is the holder of the privilege, so ___ can claim the privilege unless __ spouses ___ to a ___. This privilege does not apply in ___-___ disputes and for communications made in the commission of a __ or ___.
Divorce/Divorce
Each/ Either/ Both/ Agree/ Waiver
Intra-Family/ Crime or Fraud