Applied Relev., Proced. of Quest.'ing W, & Impeachment

Applied Relev.

  1. Excl. Evid. of Fault
    1. Offers of Humanitarian Aid (CEC 1152)a)
      1. FRE 409: Med. / similar expenses caused by injury isn't adm.
    2. Liab. Ins. Policy
      1. Could use 2 prove anything else relev. in case
    3. Offers of Settlement, Compromise, / Adm's From Negotiation
    4. Subseq. Remedial Conduct
      1. Prod. Liab.
        1. CA not rely on subseq. repairs rule 2 excl. evid.
        2. Fed. does rely 2 excl. even in prod. liab. cases
      2. Feasibility Rule
        1. Can't excl. if evid. offered 2 prove feasible 2 do something
  2. Similar Happenings
    1. Res Inter Alios Acta
      1. Gen'ly can't rely on occasion Z 2 prove occasion Y
    2. Adm. If Relev. by Factors
      1. Similarities btwn 2 occasions
      2. Narrowness of issues
      3. Need 2 use
  3. Charact. Evid.
    1. Types
      1. Specif. acts
      2. Opinions from those who know (never used in C/L)
      3. Reputation from those who not know
    2. Uses
      1. Charact. itself an issue (BLR #1)
        1. Use all 3 ways in Fed. & CA
        2. Use specif. act & reputation only in C/L
      2. Person's charact. as circ.'al evid. of conduct on partic. occasion
        1. BLR #2 & 3: Civil & prosec.'or in crim. can't use any charact. evid. 2 prove conduct on partic. occasion
          1. Exception in Fed. civil axn 4 damages 4 sex assault / child molestation
          2. Exception in Fed. & CA in crim. 4 sex assault, child molestation, & (CA) domestic viol.
        2. BLR #4: In crim., D can use reputation evid. 2 prove he didn't do it (& opinion in Fed & CA)
        3. BLR #5: Prosec.'or may cross D charact. W's & ask about specif. acts, incl.'ing noncrim. conduct
        4. BLR #6: Prosec.'or may call rebuttal W's 2 testify 2 bad reputation (/ opinion in Fed & CA) after cross
        5. BLR #7 4 Charact. of V of crime
          1. In crim., D may offer evid. about V's charact. 2 prove V's conduct
            1. C /L only ok reputation
            2. FRE 404)a ok reputation & opinion
            3. CEC 1103 ok all
          2. Prosec'or can offer rebuttal evid. about V's charact.
            1. In CA, rebuttal incl's D's charact. evid.
          3. Inapplicable 4 rape / other sex cases (FRE 412)a)
            1. Any alleged V engaged in other sex behav.
            2. Evid. of any alleged V's sex predisposition
            3. Specif. acts ok if evid. (FRE 412)b)
              1. It wasn't this crim. D caused injury / is source of semen
              2. Specif. sex behav. 2 prove consent
              3. Excl. would viol. Const'al rts of D
                1. Chambers Case 4 D/P rt.
                2. Compulsory W pwr by 6th amend.
            4. Proced. safeguards if D gives V's prior sex conduct as evid. (FRE 412)c)
              1. Advance notice 2 prosec'or & V
              2. Describe evid.
              3. Explain 2 judge why evid. ok
              4. Judge holds in camera hrg
      3. Impeachment (disc'ed later)
    3. Noncharact. Use of Specif. Acts
      1. Habit
        1. Person's specif. response 2 specif. stimulus w/predictiveness in repetition
        2. Circ'al evid. that axn occurred
      2. Custom
        1. Habit 4 institution
      3. Something Else Relev. 2 Case
        1. FRE 404)b & CEC 1101)b: If really relev. 4 other stuff, adm'able if probative value outweighs dang.'s
        2. Doc. of chances so less likely 2nd accident of same incident would occur
        3. Srch 4 common fact sig. 2 D's crime 2 adm. evid. of other crimes

Proced. of Quest'ing W's

  1. Obj's 2 Form of Quest.'s
    1. Must Obj. 2 Form in Depo / Waived
      1. Ambiguous/ unintelligible
      2. Calls 4 narrative ans.
      3. Compound quest.
      4. Argumentative
      5. Assumes fact not in evid.
      6. Speculation
      7. Already asked & ans.'ed in unequiv. way
      8. Leading
        1. Can't lead on dir. unless
          1. Adverse W / other side
          2. Hostile W
          3. Handicapped W
          4. Expert W
          5. Forgetful W
          6. Background material
        2. Can lead on cross unless
          1. Own client
          2. Own client's camp
    2. Quest's W/In Scope of Preceding Phase
      1. Ask quest.'s on issues raised before & 2 impeach / rehab. W
      2. But judge could go outside scope by discretion
    3. Each W's Adds New Issue of Credibility

Impeachment

  1. Cast Doubt on W's Stmts Through
    1. Cross Then / &
    2. Extrinsic Evid. / Anything Other Than Cross
      1. Doc.
      2. Another W's testi.
      3. Thing
  2. Methods of Impeachment
    1. W's Inability 2 Perceive, Remember / Rel. Accurately
      1. Can use both cross & extinsic
    2. Charact. Evid.: Specif. Acts
      1. Non-convictions
        1. FRE 608)b & C/L: Can cross in judge's discretion but no extrinsic
        2. CA
          1. Can't cross / extrinsic 4 civil (CEC 787)
          2. Both ok in crim. b/c all relev. evid. incl'ed in crim. unless (Art. 1, 28)d)
            1. Priv.
            2. Hearsay
            3. Judge's discretion on prejud.
            4. Rape shield
            5. Rt of press
      2. Convictions
        1. Fed. ok both b/c gen. readiness 2 do evil
          1. FRE 609 4 inadm. cases
            1. Prior conviction is 10 yrs. old
            2. Convicted but later pardoned, annulled, rehab'ed
            3. Juvenile conviction
            4. Appeal pending, then adm. but say it's pending
          2. FRE 609)a)1: Felony convictions of crimes w/o dishonesty, judge's discretion by factors
            1. Length of X conviction occurred
            2. Type of crime
            3. Similarities of crime
            4. How critical D's story is & if impeaching would threaten D from testifying
          3. FRE 609)a)2: Felony / msdr conviction must B incl'ed if inolve dishonest / false stmt of impeach
            1. Crimen falsi / crime of falsity, e.g. fraud
            2. Look @ facts of partic. crime 4 dishonesty
        2. CA
          1. Civil, then only felony convictions involving moral turpitude used & judge has 352 discretion
          2. Crim.
            1. Both felony & msdr conviction ok if involve moral turpitude
            2. Judge has 352 2 excl.
            3. Msdr conviction is hearsay but impeaching atty can prove underlying conduct
          3. Exceptions 2 using felony convictions 788
            1. Pardon
            2. Rehab.
            3. Expungement
            4. Another jxn conviction & relieved of penalties
            5. Judge has implicit discretion by 352
    3. Bias
      1. Pref. 2 cross 1st then use extrinsic
      2. Bias is never a collateral issue
    4. Prior Inconsistent Stmt
      1. C /L
        1. Cross about
          1. X
          2. Place
          3. Persons
          4. Content
        2. Then extrinsic if get denials
      2. Fed.
        1. Give fair chance 2 deny / explain & available 2 adversary /
        2. Convince judge that int. of justice served by using extrinsic 1st
      3. CA
        1. Give W fair chance 2 remember, explain, / deny /
        2. Make sure W available 4 adversary 2 examine /
        3. Convince justice served by using extrinsic 1st
      4. Hearsay exception
        1. CA w/confrontation cl.
          1. Ok if D has present / prior chance 2 confront & cross
          2. Then W's prior inconsistent stmt adm.'able
        2. Fed.
          1. Only if made under oath +
          2. Formal prcg
            1. Trial
            2. Hrg
            3. Depo
            4. Other
    5. Contradiction / Specif. Error
      1. What W said on stand is very likely not true
      2. If collateral matter, then can only use cross
  3. Rehab.
    1. Can't Rehab Before W is Attacked
    2. Rehab. Must Meet The Attack
    3. Prior Consistent Stmt's
      1. Gen'ly not meet attack so can't use unless
        1. Overcome recently arisen bias
        2. Meet claim it was recently fabricated
      2. Hearsay exceptions
        1. None in C/L & only allow 4 rehab.
        2. CA & Fed. have exception 4if properly adm'ed 4 rehab. purposes

This material is copyrighted by the author. Use of the material for profit is strictly prohibited without the written permission from the author.

May 5, 1997

Ms. Haeji Hong

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