Copyright © 2010

Thomson Reuters

Chapter 6

WITNESSES

Table of Sections

Sec.

6.00 Competency in General.

6.01 Translators and Interpreters.

6.02 Persons Disqualified From Testifying.

6.03 Credibility of Witnesses in General.

6.04 Who May Impeach.

6.05 Impeaching Sexual Assault Victims.

6.06 Impeachment by Character of the Witness—Prior Bad Acts.

6.07 Impeachment by Character of the Witness—Convictions.

6.08 Impeachment by Character of the Witness—Reputation and Opinion Regarding Veracity.

6.09 Impeachment by Character of the Witness—Religious Beliefs.

6.10 Impeachment by Prior Inconsistent Statements.

6.11 Rehabilitation by Prior Consistent Statements.

6.12 Examination of Witnesses—The Judge's General Powers.

6.13 Examination of Witnesses—The Order and Mode of Interrogation.

6.14 Examination of Witnesses—Court Witnesses.

6.15 Examination of Witnesses—Exclusion of Witnesses.

6.16 Examination of Witnesses—Refreshing Recollection.

6.17 Examination of Witnesses—Child Witnesses.

6.18 Examination of Witnesses—Other Provisions.

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§ 6.00 Competency in General

FEDERAL RULES OF EVIDENCE

Rule 601. Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.

Rule 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness' s own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Rule 603. Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

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CALIFORNIA EVIDENCE CODE

§ 700. General rule as to competency

Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.

§ 701. Disqualification of witness

(a) A person is disqualified to be a witness if he or she is:

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or

(2) Incapable of understanding the duty of a witness to tell the truth.

(b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.

§ 702. Personal knowledge of witness

(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.

(b) A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.

§ 710. Oath required

Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law, except that a child under the age of 10 or a dependent person with a substantial cognitive impairment, in the court's discretion, may be required only to promise to tell the truth.

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Comparative Note. Federal Rule of Evidence 601 and California Evidence Code § 700 provide a general rule of competency. All persons, irrespective of age, are qualified to be witnesses unless disqualified by statute. The Common Law disqualifications are eliminated. That a witness may be a party, a felon, or related to a party are now grounds for impeachment, not disqualification as a witness.

The Federal Rules and the Code require witnesses to testify under oath or affirmation and, except for experts, on the basis of personal knowledge. The Code also requires witnesses to testify in a manner that can be understood by the fact finder. The Rules are silent on this point, but such a requirement is implicit. The Rules differ from the Code in another respect. Rule 601 provides that "in civil actions and proceedings, with respect to an element of the a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law." Since Erie1 diversity concerns do not arise in matters litigated in California courts, no such provision is necessary in the Code.

§ 6.01 Translators and Interpreters

FEDERAL RULES OF EVIDENCE

Rule 604. Interpreter

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

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CALIFORNIA EVIDENCE CODE

§ 750. Rules relating to witnesses apply to interpreters and translators

A person who serves as an interpreter or translator in any action is subject to all the rules of law relating to witnesses.

§ 751. Oath required of interpreters and translators

(a) An interpreter shall take an oath that he or she will make a true interpretation to the witness in a language that the witness understands and that he or she will make a true interpretation of the witness' answers to questions to counsel, court, or jury, in the English language, with his or her best skill and judgment.

(b) In any proceeding in which a deaf or hard-of-hearing person is testifying under oath, the interpreter certified pursuant to subdivision (f) of Section 754 shall advise the court whenever he or she is unable to comply with his or her oath taken pursuant to subdivision (a).

(c) A translator shall take an oath that he or she will make a true translation in the English language of any writing he or she is to decipher or translate.

(d) An interpreter regularly employed by the court and certified or registered in accordance with Article 4 (commencing with Section 68560) of Chapter 2 of Title 8 of the Government Code, or a translator regularly employed by the court, may file an oath as prescribed by this section with the clerk of the court. The filed oath shall serve for all subsequent court proceedings until the appointment is revoked by the court.

§ 752. Interpreters for witnesses

(a) When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom he or she can understand and who can understand him or her shall be sworn to interpret for him or her.

(b) The record shall identify the interpreter who may be appointed and compensated as provided in Article 2 (commencing with Section 730) of Chapter 3.

§ 753. Translators of writings

(a) When the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing.

(b) The record shall identify the translator who may be appointed and compensated as provided in Article 2 (commencing with Section 730) of Chapter 3.

§ 754. Deaf or hearing impaired persons; interpreters; qualifications; guidelines; compensation; questioning; use of statements

(a) As used in this section, "individual who is deaf or hearing impaired" means an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not include an individual who is hearing impaired provided with, and able to fully participate in the proceedings through the use of, an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code.

(b) In any civil or criminal action, including, but not limited to, any action involving a traffic or other infraction, any small claims court proceeding, any juvenile court proceeding, any family court proceeding or service, or any proceeding to determine the mental competency of a person, in any court-ordered or court-provided alternative dispute resolution, including mediation and arbitration, or any administrative hearing, where a party or witness is an individual who is deaf or hearing impaired and the individual who is deaf or hearing impaired is present and participating, the proceedings shall be interpreted in a language that the individual who is deaf or hearing impaired understands by a qualified interpreter appointed by the court or other appointing authority, or as agreed upon.

(c) For purposes of this section, "appointing authority" means a court, department, board, commission, agency, licensing or legislative body, or other body for proceedings requiring a qualified interpreter.

(d) For the purposes of this section, "interpreter" includes, but is not limited to, an oral interpreter, a sign language interpreter, or a deaf-blind interpreter, depending upon the needs of the individual who is deaf or hearing impaired.

(e) For purposes of this section, "intermediary interpreter" means an individual who is deaf or hearing impaired, or a hearing individual who is able to assist in providing an accurate interpretation between spoken English and sign language or between variants of sign language or between American Sign Language and other foreign languages by acting as an intermediary between the individual who is deaf or hearing impaired and the qualified interpreter.

(f) For purposes of this section, "qualified interpreter" means an interpreter who has been certified as competent to interpret court proceedings by a testing organization, agency, or educational institution approved by the Judicial Council as qualified to administer tests to court interpreters for individuals who are deaf or hearing impaired.

(g) In the event that the appointed interpreter is not familiar with the use of particular signs by the individual who is deaf or hearing impaired or his or her particular variant of sign language, the court or other appointing authority shall, in consultation with the individual who is deaf or hearing impaired or his or her representative, appoint an intermediary interpreter.

(h) Prior to July 1, 1992, the Judicial Council shall conduct a study to establish the guidelines pursuant to which it shall determine which testing organizations, agencies, or educational institutions will be approved to administer tests for certification of court interpreters for individuals who are deaf or hearing impaired. It is the intent of the Legislature that the study obtain the widest possible input from the public, including, but not limited to, educational institutions, the judiciary, linguists, members of the State Bar, court interpreters, members of professional interpreting organizations, and members of the deaf and hearing-impaired communities. After obtaining public comment and completing its study, the Judicial Council shall publish these guidelines. By January 1, 1997, the Judicial Council shall approve one or more entities to administer testing for court interpreters for individuals who are deaf or hearing impaired. Testing entities may include educational institutions, testing organizations, joint powers agencies, or public agencies.

Commencing July 1, 1997, court interpreters for individuals who are deaf or hearing impaired shall meet the qualifications specified in subdivision (f).

(i) Persons appointed to serve as interpreters under this section shall be paid, in addition to actual travel costs, the prevailing rate paid to persons employed by the court to provide other interpreter services unless such service is considered to be a part of the person's regular duties as an employee of the state, county, or other political subdivision of the state. Payment of the interpreter's fee shall be a charge against the county, or other political subdivision of the state, in which that action is pending. Payment of the interpreter's fee in administrative proceedings shall be a charge against the appointing board or authority.

(j) Whenever a peace officer or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding questions or otherwise interviews an alleged victim or witness who demonstrates or alleges deafness or hearing impairment, a good faith effort to secure the services of an interpreter shall be made, without any unnecessary delay unless either the individual who is deaf or hearing impaired affirmatively indicates that he or she does not need or cannot use an interpreter, or an interpreter is not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101–336) and federal regulations adopted thereunder.

(k) No statement, written or oral, made by an individual who the court finds is deaf or hearing impaired in reply to a question of a peace officer, or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding, may be used against that individual who is deaf or hearing impaired unless the question was accurately interpreted and the statement was made knowingly, voluntarily, and intelligently and was accurately interpreted, or the court makes special findings that either the individual could not have used an interpreter or an interpreter was not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101–336) and federal regulations adopted thereunder and that the statement was made knowingly, voluntarily, and intelligently.

(l) In obtaining services of an interpreter for purposes of subdivision (j) or (k), priority shall be given to first obtaining a qualified interpreter.

(m) Nothing in subdivision (j) or (k) shall be deemed to supersede the requirement of subdivision (b) for use of a qualified interpreter for individuals who are deaf or hearing impaired participating as parties or witnesses in a trial or hearing.

(n) In any action or proceeding in which an individual who is deaf or hearing impaired is a participant, the appointing authority shall not commence proceedings until the appointed interpreter is in full view of and spatially situated to assure proper communication with the participating individual who is deaf or hearing impaired.

(o) Each superior court shall maintain a current roster of qualified interpreters certified pursuant to subdivision (f).

§ 754.5. Privileged statements; deaf or hearing impaired persons; use of interpreter

Whenever an otherwise valid privilege exists between an individual who is deaf or hearing impaired and another person, that privilege is not waived merely because an interpreter was used to facilitate their communication.

§ 755. Hearings or proceedings related to domestic violence; party not proficient in English; interpreters; fees

(a) In any action or proceeding under Division 10 (commencing with Section 6200) of the Family Code, and in any action or proceeding under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code) or for dissolution or nullity of marriage or legal separation of the parties in which a protective order has been granted or is being sought pursuant to Section 6221 of the Family Code, in which a party does not proficiently speak or understand the English language, and that party is present, an interpreter, as provided in this section, shall be present to interpret the proceedings in a language that the party understands, and to assist communication between the party and his or her attorney. Notwithstanding this requirement, a court may issue an ex parte order pursuant to Sections 2045 and 7710 of, and Article 1 (commencing with Section 6320) of Chapter 2 of Part 4 of Division 10 of the Family Code, without the presence of an interpreter. The interpreter selected shall be certified pursuant to Article 4 (commencing with Section 68560) of Chapter 2 of Title 8 of the Government Code, unless the court in its discretion appoints an interpreter who is not certified.

(b) The fees of interpreters utilized under this section shall be paid as provided in subdivision (b) of Section 68092 of the Government Code. However, the fees of an interpreter shall be waived for a party who needs an interpreter and appears in forma pauperis pursuant to Section 68511.3 of the Government Code. The Judicial Council shall amend subdivision (i) of California Rule of Court 985 and revise its forms accordingly by July 1, 1996.

(c) In any civil action in which an interpreter is required under this section, the court shall not commence proceedings until the appointed interpreter is present and situated near the party and his or her attorney. However, this section shall not prohibit the court from doing any of the following:

(1) Issuing an order when the necessity for the order outweighs the necessity for an interpreter.

(2) Extending the duration of a previously issued temporary order if an interpreter is not readily available.

(3) Issuing a permanent order where a party who requires an interpreter fails to make appropriate arrangements for an interpreter after receiving proper notice of the hearing with information about obtaining an interpreter.

(d) This section does not prohibit the presence of any other person to assist a party.

(e) A local public entity may, and the Judicial Council shall, apply to the appropriate state agency that receives federal funds authorized pursuant to the federal Violence Against Women Act (P.L. 103–322) for these federal funds or for funds from sources other than the state to implement this section. A local public entity and the Judicial Council shall comply with the requirements of this section only to the extent that any of these funds are made available.

(f) The Judicial Council shall draft rules and modify forms necessary to implement this section, including those for the petition for a temporary restraining order and related forms, to inform both parties of their right to an interpreter pursuant to this section.

§ 755.5. Medical examinations; parties not proficient in English language; interpreters; fees; admissibility of record

(a) During any medical examination, requested by an insurer or by the defendant, of a person who is a party to a civil action and who does not proficiently speak or understand the English language, conducted for the purpose of determining damages in a civil action, an interpreter shall be present to interpret the examination in a language that the person understands. The interpreter shall be certified pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.

(b) The fees of interpreters used under subdivision (a) shall be paid by the insurer or defendant requesting the medical examination.

(c) The record of, or testimony concerning, any medical examination conducted in violation of subdivision (a) shall be inadmissible in the civil action for which it was conducted or any other civil action.

(d) This section does not prohibit the presence of any other person to assist a party.

(e) In the event that interpreters certified pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code cannot be present at the medical examination, upon stipulation of the parties the requester specified in subdivision (a) shall have the discretionary authority to provisionally qualify and use other interpreters.

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Comparative Note. The Evidence Code contains detailed provisions on the qualifications and use of interpreters for non-English speaking or limited English speaking witnesses (§ 752). Interpreters are subject to all rules of law relating to witnesses (§ 750), and must take an oath swearing to make a true interpretation to the witness in a language the witness understands of the questions asked the witness and a true interpretation of the witness's answers (§ 751(a)). In addition, the Code requires the appointment of an interpreter for a party who is not proficient in English in such Family Code proceedings as dissolutions and legal separations in which a protective order has been granted or is sought (§ 755).

The Code also contains detailed provisions on the qualifications and use of interpreters for witnesses who are deaf or hearing impaired (§§ 754–754.5). It also provides for the use of translators whenever a writing offered in evidence cannot be "deciphered or understood directly" (§ 753). Translators must take an oath to translate into English any writing they are asked to decipher or translate (§ 751(c)).

In contrast, the Federal Rules have only a single provision relating to interpreters. Rule 604 provides that an "interpreter is subject to the provisions of those rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation." California's detailed rules reflect the state's extensive experience with non-English speaking or limited speaking witnesses and witnesses with disabilities.

§ 6.02 Persons Disqualified From Testifying

FEDERAL RULES OF EVIDENCE

Rule 605. Judge's Competency as a Witness

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 606. Juror's Competency as a Witness

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.

(b) During an Inquiry Into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury's attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

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CALIFORNIA EVIDENCE CODE

§ 703. Judge as witness

(a) Before the judge presiding at the trial of an action may be called to testify in that trial as a witness, he shall, in proceedings held out of the presence and hearing of the jury, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

(b) Against the objection of a party, the judge presiding at the trial of an action may not testify in that trial as a witness. Upon such objection, the judge shall declare a mistrial and order the action assigned for trial before another judge.

(c) The calling of the judge presiding at a trial to testify in that trial as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a judge shall be deemed a motion for mistrial.

(d) In the absence of objection by a party, the judge presiding at the trial of an action may testify in that trial as a witness.

§ 703.5. Judges, arbitrators or mediators as witnesses; subsequent civil proceeding

No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

§ 704. Juror as witness

(a) Before a juror sworn and impaneled in the trial of an action may be called to testify before the jury in that trial as a witness, he shall, in proceedings conducted by the court out of the presence and hearing of the remaining jurors, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

(b) Against the objection of a party, a juror sworn and impaneled in the trial of an action may not testify before the jury in that trial as a witness. Upon such objection, the court shall declare a mistrial and order the action assigned for trial before another jury.

(c) The calling of a juror to testify before the jury as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a juror shall be deemed a motion for mistrial.

(d) In the absence of objection by a party, a juror sworn and impaneled in the trial of an action may be compelled to testify in that trial as a witness.

§ 795. Testimony of hypnosis subject; admissibility; conditions

(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events that are the subject of the witness's testimony, if all of the following conditions are met:

(1) The testimony is limited to those matters that the witness recalled and related prior to the hypnosis.

(2) The substance of the prehypnotic memory was preserved in a writing, audio recording, or video recording prior to the hypnosis.

(3) The hypnosis was conducted in accordance with all of the following procedures:

(A) A written record was made prior to hypnosis documenting the subject's description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.

(B) The subject gave informed consent to the hypnosis.

(C) The hypnosis session, including the pre-and post-hypnosis interviews, was videotape recorded for subsequent review.

(D) (D) The hypnosis was performed by a licensed physician and surgeon, psychologist, licensed clinical social worker, licensed marriage and family therapist, or licensed professional clinical counselor experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness's prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness's prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses.

(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.

§ 1150. Evidence to test a verdict

(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.

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Comparative Note.

Presiding Judges. Rule 605 prohibits the judge presiding over the trial to testify as a witness. No objection needs to be made to preserve the point.

The Code, on the other hand, allows the presiding judge to testify as a witness if no party objects (§ 703(d)). But before the presiding judge can be called as a witness, the judge, in a hearing outside the presence of the jury, must inform the parties of the information he or she has about any matter the judge will be called to testify (§ 703(a)). If a party objects to the judge as a witness, the judge may not testify, and the judge must declare a mistrial and order the action to be tried before another judge (§ 703(b)).

Non–Presiding Judges, Arbitrators, and Mediators. Code § 703.5 provides that

[n]o person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify in any subsequent civil proceeding as to any statement, conduct, decision or ruling occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section shall not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

The Code section protects non-presiding judges, arbitrators, and mediators from harassment and promotes the stability of their decisions. The Federal Rules do not have an equivalent provision.

Sitting Jurors. Rule 606 and Code § 704(b) provide that, upon objection, a California or federal juror may not testify as a witness at the trial in which the juror is sitting. The Code, however, expressly allows the parties to make an informed decision on whether to object to the juror as a witness. Code § 704(a) provides that "[b]efore a juror sworn and impaneled in the trial of an action may be called to testify before the jury in that trial as a witness, he shall, in proceedings conducted by the court out of the presence and hearing of the remaining jurors, inform the parties of the information he has concerning any fact or matter about which he will be called to testify." If no party objects, the juror may testify.

Jurors and Post–Verdict Proceedings. In California post-verdict proceedings, jurors may be called to testify about "statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such character as [are] likely to have influenced the verdict improperly." (§ 1150). But to protect jurors from harassment, jurors may not testify about the effect such statements, conduct, conditions, or events had in influencing the jurors to assent or dissent from the verdict or upon the mental processes by which the verdict was reached. Thus, the Code permits evidence of misconduct by trial jurors to be received but forbids the receipt of evidence about the effect of such misconduct on the deliberations of the jurors (Comment). Examples of permissible evidence include improper discussion by jurors of the accused's failure to testify as well as of the sentence the court might impose if they found the accused guilty.1 Evidence may also be received to show that jurors read, watched, heard or discussed news accounts of the cases in which they are sitting,2 or asked witnesses questions about any matter related to the case.

Federal Rule of Evidence 606(b) takes a more restrictive approach. In addition to precluding a juror from testifying about "anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith," Rule 606(b) also provides that a juror may not testify about "any matter or statement occurring during the course of the jury's deliberations * * *." A juror, however, may testify "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."

A 2006 amendment to Rule 606 allows the use of juror testimony "to prove that the verdict reported was the result of a mistake in entering the verdict on the verdict form."3 According to the Advisory Committee, the amendment is limited to such cases as " 'where the jury foreperson wrote down, in response to an interrogatory, a number different from that agreed upon by the jury, or mistakenly stated that the defendant was 'guilty' when the jury had actually agreed that the defendant was not guilty.' "4 Rule 606, however, still bans the use of juror testimony to prove that the jurors were operating under a misunderstanding of the consequences of the result they agreed upon.5

Tanner v. United States6 illustrates the differences between the Code and the Federal Rules. Tanner appealed his convictions for fraud on the ground that, after the verdict, the judge erroneously denied him the opportunity to call two jurors who would testify that some of their fellow jurors had ingested alcohol, marihuana, and cocaine during the trial. The United States Supreme Court upheld the judge's denial of a hearing on the alleged juror misconduct. Under the Federal Rules as construed by the Court, "[J]uror intoxication is not an 'outside influence' about which jurors may testify to impeach their verdicts."7

Section 1150 of the Code would not have barred the jurors' testimony. Under Code § 1150, evidence of juror intoxication within or without the jury room may be received if it is likely to have influenced the verdict improperly. To protect the jurors, however, the Code would have prohibited the accused from asking the jurors about the effect that the intoxication had on their deliberations.

Hypnotized Witnesses. The Federal Rules do not contain any provisions regarding the competency of witnesses who are hypnotized prior to taking the stand. California, on the other hand, has both decisional and statutory law on this matter.

In People v. Shirley8 the California Supreme Court held that "the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the hypnotic session forward."9 The court was not convinced that the use of hypnosis to restore the memory of a potential witness had been generally accepted as a reliable technique by the relevant scientific community.10 On the contrary, the court was troubled that "[d]uring the hypnotic session, neither the subject nor the hypnotist [could] distinguish between memories and pseudo memories * * * and when the subject [repeated the] recall in a waking state (e.g., in a trial) neither an expert nor a lay observer (e.g., the judge or jury) [could] make a similar distinction."11 The court was equally concerned with the ineffectiveness of cross-examination in exposing pseudo memories. Since a witness who has undergone hypnosis sincerely believes that his testimony on the stand is his true recall and not the product of deliberate or inadvertent suggestion during the hypnotic session, even the most vigorous cross-examination cannot expose pseudo memories.12

The court exempted criminal defendants from the disqualification announced in Shirley because of concerns over their right to testify in their own defense.13 Exempting criminal defendants is consistent with federal constitutional law. In Rock v. Arkansas14 the United States Supreme Court invalidated a state rule that precluded the use of a defendant's hypnotically refreshed testimony. Such a blanket prohibition violates the accused's right to present evidence in his own defense.15

Shortly after the Shirley decision was announced, the California electorate approved Proposition 8, the Victims Bill of Rights.16 One of its provisions, the Right to Truth–in–Evidence, gives parties to criminal proceedings the state constitutional right not to have relevant evidence excluded.17 Since barring the testimony of previously hypnotized witnesses can exclude relevant evidence, a literal application of Proposition 8 would overturn Shirley. Concerned that the proposition would permit previously hypnotized witnesses to testify in all criminal cases, the Legislature added § 795 to the Evidence Code in 1984. This section strikes a middle ground between Proposition 8 and the disqualification announced in Shirley by permitting a previously hypnotized witness to testify if the judge finds that strict guidelines have been followed. These guidelines are designed to prevent the hypnotic session from improperly contaminating the witness's recall.

Section 795 clarifies Shirley by permitting previously hypnotized witnesses to testify if their testimony is limited to those matters which they recalled and related prior to the hypnotic session and the other conditions of the section are satisfied. The witnesses, however, may not testify about new matters which surfaced during the hypnotic session.

Unlike Shirley, § 795 does not expressly exempt the criminal defendant from its application. People v. Aguilar,18 however, holds that Shirley, not § 795, governs the use of a criminal defendant's posthypnotic testimony.19 Since Shirley places no restrictions on the use of such testimony, the fact that the accused was hypnotized under circumstances that violate the conditions of § 795 is not a ground for preventing the accused from testifying.

Section 795 applies only to criminal proceedings. But since Shirley does not distinguish between criminal and civil proceedings, Shirley governs the use of a witness's posthypnotic testimony in civil proceedings. Accordingly, if a witness in a civil matter has been hypnotized for the purpose of restoring her memory of the events in issue, the witness's testimony is inadmissible as to all matters relating to those events from the hypnotic session forward. Shirley, however, does not apply to prehypnotic evidence offered in a civil case. Thus, a civil "witness who has undergone hypnosis is not barred from testifying to events which the court finds were recalled and related prior to the hypnotic session."20 However, because Shirley exempts only the accused from the testimonial disqualification, Shirley applies to the parties in civil proceedings.21 Accordingly, a party in a civil case is barred from testifying if the party's recollection of the events in question first surfaced during the hypnotic session.

§ 6.03 Credibility of Witnesses in General

Article 1 of the California Constitution

§ 28. Findings and declarations; rights of victims; enforcement

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(f) * * *

(2) Right to Truth–in–Evidence. Except as provided by statute hereafter enacted by two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.

CALIFORNIA EVIDENCE CODE

§ 780. Testimony; proof of truthfulness; considerations

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.

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Comparative Note. The Federal Rules and Evidence Code diverge substantially in the methods that can be employed to support and attack the credibility of witnesses. Part of the departure can be attributed to Proposition 8. In June 1982, the California electorate approved this initiative entitled "The Victims Bill of Rights." One of its provisions, "The Right to Truth–in–Evidence," transformed the rules of evidence applicable to criminal proceedings by amending the state constitution to give the parties a right not to have relevant evidence excluded. This provision, in pertinent part, reads as follows:

Except as provided by statute hereafter enacted by a two-thirds vote of the membership of each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding * * *. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782, or 1103.1

A literal application of this provision would repeal all the Evidence Code sections not expressly exempted that ban or limit evidence bearing on the credibility of witnesses. Since such evidence is relevant, its admissibility would be governed instead by § 352. Under § 352, a California judge can exclude relevant evidence if its probative value is substantially outweighed by enumerated trial concerns. These include the risk that the evidence may consume too much time, unfairly prejudice the opposing party, confuse the issues, or mislead the jury. A literal interpretation of the proposition would thus replace the certainty provided by specific rules governing credibility with the discretion accorded trial judges by § 352.

The effect of Proposition 8 is to create two systems of rules for governing evidence offered on witness credibility in California. The Evidence Code continues in effect in civil cases, but Proposition 8 now governs in criminal proceedings.2

The Federal Rules of Evidence do not contain a provision equivalent to Proposition 8. The Rules continue the tradition of having one set of evidentiary rules apply generally to all trials irrespective of whether the proceeding is civil or criminal.

A unique feature of the Code is § 780. This section provides a nonexclusive list of the matters the fact finder can consider in assessing the credibility of witnesses. The list is technically unnecessary. Evidence bearing on credibility is relevant, and, unless otherwise provided, all relevant evidence is admissible.3 The list is nonetheless invaluable because it enables California judges and lawyers to grasp at a glance the broad spectrum of evidence that may be available to attack or support a witness's credibility. The Federal Rules of Evidence do not contain an equivalent provision, but similar principles can be derived by applying Rule 401, which defines relevant evidence as including evidence that is probative of a witness's credibility, and Rule 402, which declares that all relevant evidence is admissible unless otherwise excluded.

§ 6.04 Who May Impeach

FEDERAL RULES OF EVIDENCE

Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness's credibility.

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CALIFORNIA EVIDENCE CODE

§ 785. Parties may attack or support credibility

The credibility of a witness may be attacked or supported by any party, including the party calling him.

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Comparative Note. There is no substantive difference between Rule 607 and § 785 on the right of parties to impeach witnesses.

§ 6.05 Impeaching Sexual Assault Victims

CALIFORNIA EVIDENCE CODE

§ 782. Sexual offenses; evidence of sexual conduct of complaining witness; procedure for admissibility; treatment of resealed affidavits

(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:

(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.

(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court.

(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

(5) An affidavit resealed by the court pursuant to paragraph (2) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant raises that issue on appeal, the court shall allow the Attorney General and appellate counsel for the defendant access to the sealed affidavit. If the issue is raised on collateral review, the court shall allow the district attorney and defendant's counsel access to the sealed affidavit. The use of the information contained in the affidavit shall be limited solely to the pending proceeding.

(b) As used in this section, "complaining witness" means:

(1) The alleged victim of the crime charged, the prosecution of which is subject to this section, pursuant to paragraph (1) of subdivision (c).

(2) An alleged victim offering testimony pursuant to paragraph (2) or (3) of subdivision (c).

(c) The procedure provided by subdivision (a) shall apply in any of the following circumstances:

(1) In a prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504.

(2) When an alleged victim testifies pursuant to subdivision (b) of Section 1101 as a victim of a crime listed in Section 243.4, 261, 261.5, 269, 285, 286, 288, 288a, 288.5, 289, 314, or 647.6 of the Penal Code, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.

(3) When an alleged victim of a sexual offense testifies pursuant to Section 1108, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.

§ 783. Sexual harassment, sexual assault, or sexual battery cases; admissibility of evidence of plaintiff's sexual conduct; procedure

In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, if evidence of sexual conduct of the plaintiff is offered to attack credibility of the plaintiff under Section 780, the following procedures shall be followed:

(a) A written motion shall be made by the defendant to the court and the plaintiff's attorney stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the plaintiff proposed to be presented.

(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the plaintiff regarding the offer of proof made by the defendant.

(d) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the plaintiff is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

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Comparative Note.

Sexual Assault Victims—Criminal Cases. California's rape shield provisions affect defense evidence in two ways. First, § 1103(c) prohibits the use of evidence of the victim's sexual relations with others to prove that the victim consented to having sexual relations with the accused because she is the kind of person who engages in consensual sex.1 The defense is limited to proving only the victim's sexual conduct with the accused. Second, § 782 prohibits the use of otherwise admissible evidence of the complaining witness's sexual conduct offered under § 780 to attack her credibility, unless at a separate hearing the judge concludes that the probative value of the evidence is not substantially outweighed by the concerns enumerated in § 352.2 Section 352 gives California judges the discretion to exclude relevant evidence whenever its probative value is substantially outweighed by the dangers that it will consume too much time, confuse the issues, mislead the jurors, or create undue prejudice. Section780 allows the fact finder to consider in determining the credibility of a witness any evidence that "has a tendency in reason to prove or disprove the truthfulness of the witness's testimony."

The term "sexual conduct" encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity.3 Section 782 sets out an elaborate procedure, including the filing by the accused of a written motion and offer of proof, to be followed in screening evidence offered under Section 782. Failure to comply with the procedural requirements will preclude the accused from raising the trial judge's error in excluding evidence of the complaining witness's sexual conduct that is offered to attack her credibility.4

To obtain a hearing on the admissibility of the impeaching evidence, the accused must persuade the judge that the proposed evidence is "sufficient." Presumably, the proffer is sufficient if it is probative of a proposition discrediting the complaining witness's credibility and the use of the proffered evidence for that purpose is not barred by the Evidence Code. But even if the evidence produced at the hearing is probative of the victim's lack of credibility and its use is not barred by the Code, the judge may still exclude the evidence if its probative value is substantially outweighed by the concerns enumerated in § 352.

The Federal Rules of Evidence also contain a rape shield provision. Rule 412 permits the accused to offer evidence of specific instances of his own sexual conduct with the victim to prove consent, if the judge first determines at a separate hearing that the probative value of the evidence outweighs the concerns of Rule 403, including prejudice to the victim (Advisory Committee Note).5 The rule also allows the accused to offer evidence of specific instances of the victim's specific sexual conduct with others to prove that someone other than the accused is responsible for the assault charged. The use of the evidence for this purpose is also subject to a finding at a separate hearing that its probative value outweighs its prejudice to the victim. Unlike the Code, however, Rule 412 does not authorize the use of evidence of the victim's sexual conduct for impeachment purposes.6

Sexual Assault Victims—Civil Cases. The same concerns that prompted the California Legislature to enact the rape shield laws moved it to pass legislation protecting plaintiffs in sexual harassment, battery, and assault lawsuits. California Evidence Code § 1106 prohibits the defendant in such actions from offering evidence of the plaintiff's sexual conduct with others to prove consent or the absence of injury, unless the plaintiff claims loss of consortium.7 As in the case of the rape shield laws, however, the prohibition does not apply to evidence of the plaintiff's sexual conduct with the alleged perpetrator. Moreover, if the plaintiff introduces evidence making his or her sexual conduct an issue, the defendant is entitled to offer rebutting evidence.

The use of evidence of the plaintiffs' sexual conduct to attack the credibility of plaintiffs in sexual harassment, battery, and assault lawsuits is governed by § 783, not § 1106. Section 783 affords plaintiffs in civil actions the same protections afforded by § 782 to victims in prosecutions for sexual assault. Before a defendant may offer evidence of the plaintiff's sexual conduct to attack her credibility, the defendant must file a motion accompanied by an offer of proof setting out the evidence the defendant wishes to introduce. If the judge finds the offer "sufficient," the judge must hold a hearing outside the presence of the jury to allow the defendant to question the plaintiff. At the conclusion of the hearing, the judge may exclude the evidence or admit it subject to whatever limitations the judge imposes under § 352.

Federal Rule of Evidence 412, the federal rape shield provision, also applies in civil cases involving sexual misconduct, such as sexual harassment claims.8 Rather than spell out the limited purposes for which evidence of a victim's sexual behavior or predisposition can be received in civil cases, Rule 412 commits the admissibility of the evidence to the court's discretion. If the evidence is otherwise admissible under the Rules, it may be received if the court finds that its probative value on contested issues substantially outweighs the danger of harm to the victim and of prejudice to any party. But, as has been noted, Rule 412, unlike the Code, does not authorize the use of evidence of the plaintiff's sexual conduct for impeachment purposes.

§ 6.06 Impeachment by Character of the Witness—Prior Bad Acts

FEDERAL RULES OF EVIDENCE

Rule 608. A Witness's Character for Truthfulness or Untruthfulness

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(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

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CALIFORNIA EVIDENCE CODE

§ 787. Specific instances of conduct

Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

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Comparative Note. The Common Law allowed the cross examiner to impeach a witness by inquiring into acts of misconduct by the witness that were not the subject of a conviction.1 An example would be asking the witness if he cheated on his latest income tax returns. The theory of impeachment is that jurors ought to question the veracity of witnesses who engage in "bad acts." The bad acts doctrine is based on a character theory of impeachment. The misdeeds are offered as evidence of the witness's predisposition to be untruthful under oath.

The Code rejects the prior bad acts doctrine. Section 787 prohibits the use of specific instances of a witness's conduct (other than convictions) to prove a character trait to attack (or support) the credibility of the witness. In civil proceedings, § 787's ban on the use of prior bad acts continues in effect.

In criminal cases, however, Proposition 8 repeals § 787. As has been noted, the Right to Truth–in–Evidence provision gives parties to criminal proceedings the state constitutional right not to have relevant evidence excluded. Evidence that a witness has cheated on his income tax returns is probative of the witness's character for lack of veracity. The proposition that the witness is the kind of person who will not tell the truth under oath is rendered more likely by evidence that he lies on his income tax returns than the proposition would be without the evidence. Accordingly, under Proposition 8 such evidence is admissible in criminal cases unless excluded by the judge under § 352.

The Federal Rules of Evidence introduced the prior bad acts doctrine into federal practice for the first time.2 Rule 608(b) permits the cross examiner to inquire into specific instances of misconduct by the witness that may be probative of the witness's bad character for truthfulness. But to limit the doctrine, Rule 608(b) preserves the Common Law restriction binding the examiner to the witness's answer. If the witness denies committing the act, the examiner is prohibited from proving it extrinsically. Moreover, federal judges have the discretionary power to prevent the examiner from inquiring into prior bad acts in the first place if their probative value on the witness's lack of veracity is outweighed by the concerns enumerated in Rule 403. This rule, which is the federal equivalent of California Evidence Code § 352, allows a judge to take into account the prejudicial effects of the evidence.

Rule 608(b) permits a party to inquire into specific instances of conduct that may be probative of the witness's good character for truthfulness. The rule is oddly worded in that it limits such inquiry to the cross-examination of the witness. Since it is unlikely that a cross examiner will seek to support the credibility of the witness, the framers may have had redirect, rather than cross-examination, in mind.3

§ 6.07 Impeachment by Character of the Witness—Convictions

FEDERAL RULES OF EVIDENCE

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

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Article 1 of the California Constitution

§ 28. Findings and declarations; rights of victims; enforcement

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(f) * * *

(2) Right to Truth–in–Evidence. Except as provided by statute hereafter enacted by two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.

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(4) Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.

CALIFORNIA EVIDENCE CODE

§ 788. Prior felony conviction

For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:

(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.

(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.

(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.

(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).

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Comparative Note.

Federal Rule 609. As amended in 2006, Federal Rule 609 (a)(2) allows a party to impeach any witness with any timely misdemeanor or felony conviction "if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."1 It is immaterial whether the case is civil or criminal or whether the witness to be impeached is the accused or some other witness. The judge has no discretion to exclude such convictions.

The purpose of the amendment is to resolve a conflict over how a federal judge should determine whether a conviction involves dishonesty or false statement. Although the statutory elements of the offense will ordinarily indicate whether the conviction involved dishonesty or false statement, the Advisory Committee declined to limit a federal judge to a facial analysis of the statute violated.2 Instead, the Committee opted to authorize the impeaching party to offer and a federal judge to consider such documents as the indictment, a statement of admitted facts, and jury instructions to determine whether the factfinder had to find or the witness had to commit an act of dishonesty or false statement in order for the witness to be convicted.3

If the conviction does not involve dishonesty or false statement, then in the case of a witness other than the accused only felony grade convictions may be used to impeach if the judge finds that the probative value of the conviction is not substantially outweighed by the concerns enumerated in Rule 403.

If the conviction does not involve dishonesty or false statement but the witness to be impeached is the accused, then only felony grade convictions may be used if the judge determines "that the probative value of admitting the conviction outweighs its prejudicial effect to the accused * * *." Because of the risk that a jury might misuse convictions as evidence of the accused's guilt, Rule 609(a) requires that in all cases the government show that the probative value of the convictions, as impeachment evidence, outweighs their prejudicial effect to the accused.4 Thus, this test and not the test of Rule 403 is employed.

Under Federal Rule 609(b), convictions may not be used to attack the credibility of a witness "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old * * * is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such [conviction] evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."

Juvenile adjudications are generally inadmissible to impeach witnesses. But under Rule 609(d), the judge may "in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence."

Under Rule 609(c), a conviction may not be used to impeach if "(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent [felony grade] crime, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence." The pendency of an appeal from a conviction does not render evidence of the conviction inadmissible. But evidence of the pendency of an appeal is admissible.

California Civil Cases. California Evidence Code § 788 embodies the Common Law rule that a witness's credibility can be attacked by evidence that the witness has been convicted of a crime. Section 788 follows this tradition by allowing a party to impeach a witness by evidence that the witness has been convicted of a felony.

The California Evidence Code and the Federal Rules of Evidence justify the use of convictions to impeach witnesses on the basis of a character theory of relevance.5 They allow the fact finders to consider the misconduct underlying the conviction as evidence of a flaw in the witness's character for truth-telling under oath. Logically, only convictions for criminal misconduct that is probative of a witness's predisposition to lie under oath should be admissible. The Code, however, does not distinguish between convictions predicated on negligence or strict liability and convictions based on a higher mens rea, such as recklessness, knowledge or purpose, or the nature of the crime committed. Section 788 permits impeachment by any felony conviction.

The logical flaw in § 788 could have been eliminated if the California Legislature had adopted the recommendation of Professor James H. Chadbourne who, at the request of the California Law Revision Commission, prepared the study that eventually gave rise to the Evidence Code. Professor Chadbourne recommended a rule that would have limited convictions offered to impeach a witness to those in which an essential element of the crime is dishonesty or false statement.6 Perjury is example of such a crime. A violation requires proof that a person knowingly stated as true a material matter the person knew to be false.7 But in enacting § 788 the Legislature rejected Professor Chadbourne's recommendation and instead opted to retain the approach formerly contained in the Code of Civil Procedure. That approach allows a witness to be impeached by any felony conviction.

Section 788, however, does not strip California trial judges of discretion to exclude felony convictions when offered to impeach a witness. Because § 788 merely states that a party "may" show that the witness has been convicted of a felony, the use of the permissive term has enabled the California appellate courts in civil cases (and in criminal cases until the enactment of Proposition 8) to develop rules disfavoring the use of convictions which say little or nothing about a witness's character for lack of veracity.8

Section 788 prohibits the use of felony convictions in four circumstances. A felony conviction may not be used to impeach a witness where (1) a pardon based on the witness's innocence has been granted by the jurisdiction in which the witness was convicted, (2) a pardon has been granted on the basis of a certificate of rehabilitation, (3) the conviction has been set aside because the felon has fulfilled the conditions of probation, or (4) the witness has been convicted by another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to procedures substantially equivalent to those described in (2) and (3).

California Criminal Cases. Until the enactment of Proposition 8, § 788 also governed the use of convictions to impeach witnesses in criminal cases. Section 788 has been superseded by two seemingly conflicting constitutional provisions enacted by Proposition 8 relating to a judge's discretionary power to exclude convictions. Section 28(f)(4) of Article 1 of the California Constitution strips judges of any such discretion by requiring that felony convictions be used to impeach witnesses "without limitation." Section 28(f)(2), on the other hand, reaffirms a judge's discretionary power to exclude relevant evidence whenever its probative value is substantially outweighed by the concerns enumerated in § 352. To reconcile the two provisions, the California Supreme Court in People v. Castro9 interpreted Proposition 8 as restoring the kind of discretion judges had to exclude convictions for undue prejudice prior to Proposition 8.10

Moved in part by the Fourteenth Amendment, the court also held that due process requires the exclusion of felony convictions that do not involve "moral turpitude."11 In the court's view, the use of such convictions offends due process because they say nothing about the witness's character for lack of veracity.12 Therefore, to permit the fact finder to consider convictions devoid of moral turpitude would deprive the accused of a fair trial in which the fact finder considers only relevant and competent evidence on the issue of guilt or innocence.13

Why does the court consider convictions involving moral turpitude probative of a witness's lack of veracity? Because "a witness's moral depravity of any kind has some 'tendency in reason' * * * to shake one's confidence in his honesty."14 Which felonies involve moral turpitude? Clearly, felonies involving false statement—of which perjury is the paradigm—since these felonies say something about a witness's willingness to lie under oath.15 But according to Castro, any crime evincing a "readiness to do evil" involves moral turpitude.16 Presumably, witnesses with such a character trait might do mischief on the stand by disregarding their obligation to testify truthfully under oath. Not surprisingly, Castro has spawned its own extensive jurisprudence regarding the identity of convictions involving moral turpitude and the scope of a judge's discretion to exclude convictions.

Misdemeanor Convictions and Proposition 8. Under the Evidence Code, misdemeanor convictions may not be used to establish a witness's character for lack of veracity. Section 788 authorizes only the use of felony convictions for this purpose. Misdemeanor convictions, moreover, may not be used for this purpose in criminal cases under § 28(f)(4) of Proposition 8, since this section focuses exclusively on the use of felony convictions. Section 28(f)(2), however, vests parties to criminal proceedings with the state constitutional right not to have relevant evidence excluded. Since misdemeanor convictions that are probative of a witness's character for lack of veracity are relevant, such convictions are now admissible under this provision of Proposition 8.17 In the absence of a special hearsay exception, however, misdemeanor convictions may not be received for this purpose.

Traditional hearsay exceptions are unavailing. Evidence Code § 788 may not be invoked to prove the facts essential to a misdemeanor conviction because, as noted, § 788 authorizes only the use of felony convictions to impeach witnesses. Section 1300 cannot be used for this purpose because it is limited to proving felony convictions and then only when the felony convictions are offered in a civil action. If the witness to be impeached is the accused, the exception for party admissions is likewise unavailing, but for a different reason: asking the witness on cross-examination whether he has been convicted of a misdemeanor would prove only the fact of conviction and not the misconduct giving rise to the convicted offense.18 For the same reason, the business and official records exceptions cannot be used: those records would prove only the fact that the witness has been convicted of the misdemeanors enumerated in the records.19 Consequently, in the absence of a new hearsay exception, the impeaching party must offer the misconduct giving rise to the misdemeanor conviction and not the conviction to prove that the witness engaged in misconduct that is probative of his character for lack of veracity.20 In essence, the impeaching party must treat the misconduct giving rise to the conviction as a prior bad act.21

In 1996 the Legislature added § 452.5 to the Evidence Code. This section provides that an "official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, service of a prison term, or other act, condition or event recorded by the record." Section 1280 creates a hearsay exception for official records, and Section 1530 permits copies of records in the custody of a public entity to be offered without the need to call a custodian to authenticate the copy if attested or certified as a correct copy of the original record by a public employee having legal custody of the record.

As a matter of statutory construction, it is not entirely clear whether § 452.5 can be used to offer a conviction record as proof that the accused engaged in the misconduct giving rise to the conviction. Though the section does state that the record may be offered to prove "the commission" of the offense, this provision is limited by the requirement that the record be offered to prove only those acts, conditions or events recorded in the record. Thus, if the only event recorded is the fact of conviction, using that entry to prove that the accused engaged in the misconduct giving rise to the conviction would still appear to violate the hearsay rule. However, in People v. Duran22 the California Court of Appeal dispelled this uncertainty by holding that § 452.5 "creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred."

Juvenile Adjudications and Proposition 8. The Evidence Code is silent on whether juvenile adjudications can be used to impeach witnesses. People v. Sanchez23 holds that juvenile adjudications cannot be used to impeach witnesses because juvenile proceedings are not criminal proceedings and do not result in criminal convictions.24 But People v. Lee25 holds that in California criminal cases the misconduct giving rise to juvenile adjudications may be used to impeach a witness if the misconduct evinces moral turpitude as required by Castro and the juvenile has not been released from the penalties and disabilities arising from the adjudication by having been discharged honorably by the California Youth Authority.26

Under Lee it is immaterial whether the juvenile adjudication is for misconduct that violates a felony or misdemeanor.27 Thus in Lee the witness was impeached by evidence of misconduct giving rise to felony burglary as well as misdemeanor theft.

Comparing the Code and the Rules. Rule 609 permits the use of misdemeanor convictions to impeach. Section 788 does not. But in criminal cases the Right to Truth-in-Evidence of Proposition 8 has been construed to permit the use of misdemeanor convictions evincing moral turpitude.

Rule 609 strips federal judges of discretion to exclude convictions involving dishonesty or false statement. The admission of convictions under § 788 is subject to the judge's discretionary power to exclude relevant evidence under § 352. In California criminal cases, judges retain the discretion to exclude convictions that say little or nothing about the witness's predisposition to lie under oath.

Under Rule 609, the use of convictions against the accused is subject to a special balancing test if the convictions do not involve dishonesty or false statement. The use of convictions against the accused in California is governed by the California Supreme Court's construction of the two provisions of Proposition 8 that apply to convictions.

The effects of pardons, annulments, and certificates of rehabilitation, while similar, are not identical under Rule 609 and § 788.

Rule 609 permits the use of juvenile adjudication to impeach witnesses in limited circumstance. Section 788 does not. But in criminal cases the Right to Truth-in-Evidence of Proposition 8 has been construed to permit the use of the misconduct giving rise to juvenile adjudications to impeach witnesses provided the misconduct evinces moral turpitude.

§ 6.08 Impeachment by Character of the Witness—Reputation and Opinion Regarding Veracity

FEDERAL RULES OF EVIDENCE

Rule 608. A Witness's Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

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CALIFORNIA EVIDENCE CODE

§ 786. Character evidence generally

Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.

§ 787. Specific instances of conduct

Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

§ 790. Good character of witness

Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.

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Comparative Note.

Federal 608(a). The Federal Rules track the Common Law with respect to the use of character evidence to attack or support the credibility of a witness. Rule 608(a) provides that a witness may be attacked or supported by character evidence in the form of opinion or reputation, provided the evidence refers only to "character for truthfulness or untruthfulness". Rule 608(a) prohibits the use of good character evidence unless the witness's character for truthfulness has first been attacked by opinion or reputation evidence, or "otherwise".

"Otherwise" includes impeachment by conviction as well as by prior bad acts, such as corruption, since in the Advisory Committee's view these forms of impeachment impugn the witness's character for truthfulness.1 Impeachment by bias or interest does not qualify as an attack; whether impeachment by contradiction qualifies as an attack on the character of the witness depends on the circumstances.2 Where the contradicting evidence "amounts in net effect to an attack on character for truth,"3 a federal judge may permit the witness to be rehabilitated through good character evidence for truthfulness.

California Civil Cases. California Evidence Code §§ 786–787 permit a party to impeach the credibility of a witness by opinion or reputation evidence impugning the witness's character for honesty or veracity. The same sections also permit a party to rehabilitate a witness by opinion or reputation evidence supporting the witness's character for honesty or veracity. But under § 790 evidence of the witness's good character is inadmissible unless the witness's character has first been attacked and then only if the attack takes one of two forms—by opinion or reputation evidence impugning the witness's character for honesty or veracity,4 or by a felony conviction.5

California Criminal Cases. In criminal cases, a literal application of Proposition 8 threatens to repeal the statutory and judicial restraints on the use of character evidence to attack and support the credibility of witnesses. Under the Right to Truth–in–Evidence provision of the initiative, parties to criminal proceedings have a state constitutional right not to have relevant evidence excluded, unless the judge determines that the probative value of the evidence is substantially outweighed by the costs of admitting it.6 A strict interpretation of the proposition would have the following effects:

First, it would repeal § 790, which prohibits the introduction of good character evidence until after the witness's character for honesty and veracity has been attacked. A witness's credibility becomes an issue the moment the witness takes the stand. Therefore, the calling party should be able to support the witness's credibility even though it has not been attacked. Accordingly, People v. Taylor7 holds that a criminal defendant who takes the stand is entitled to offer good character evidence of his honesty and veracity even if the prosecution has not first attacked the defendant's character as a witness.8

Second, in proving a witness's character for honesty or dishonesty, the proponent is no longer limited to reputation or opinion evidence. Because specific instances of honesty or dishonesty are probative of a witness's character for honesty or dishonesty, specific acts are now admissible. People v. Harris,9 for example, holds that the prosecution may prove an informant's predisposition to testify honestly at the trial by evidence of his past reliability as an informant,10 and People v. Adams11 holds that the accused in a rape prosecution may prove the complaining witness's character for dishonesty as a witness by evidence that she had falsely accused others of rape.12 Accordingly, Proposition 8 repeals § 787 which bans the use of specific acts (other than convictions) to prove a witness's character for veracity or lack of veracity.

The use of character evidence—whether in the form of opinion, reputation, or specific acts—is still subject to discretionary exclusion under § 352 after Proposition 8. A California criminal judge can exclude all or some of this evidence if its prejudicial effects substantially outweigh its probative value on the witness's character for honesty or dishonesty. Where the witness who is to be impeached by the character evidence is the accused, special concerns arise. A risk exists that the jury might improperly convict the accused on account of his or her bad character rather than upon the evidence of his or her guilt. The risk is especially pronounced when the prosecution seeks to impeach the accused with specific acts of dishonesty that are similar to the offenses charged against the accused.

§ 6.09 Impeachment by Character of the Witness—Religious Beliefs

FEDERAL RULES OF EVIDENCE

Rule 610. Religious Beliefs or Opinions

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

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CALIFORNIA EVIDENCE CODE

§ 789. Religious belief

Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.

<EN>---

Comparative Note. Federal Rule of Evidence 610 and Evidence Code § 789 prohibit the use of a witness's religious beliefs (or lack thereof) to establish the witness's character for veracity or lack of veracity. Neither the Code nor the Rules prohibits the use of a witness's religious affiliations if offered for some other purpose, for example, to prove bias or interest. Though the two provisions are not identically worded, they are essentially the same in substance.

In California criminal cases, however, the Right-to-Truth provision of Proposition 8 appears to repeal the Code's prohibition on the use of a witness's religious beliefs to attack or support the credibility of the witness.

§ 6.10 Impeachment by Prior Inconsistent Statements

FEDERAL RULES OF EVIDENCE

Rule 613. Witness's Prior Statement

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or
implied	charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

CALIFORNIA EVIDENCE CODE

§ 769. Inconsistent statement or conduct

In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.

§ 770. Evidence of inconsistent statement of witness; exclusion; exceptions

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or

(b) The witness has not been excused from giving further testimony in the action.

§ 1235. Inconsistent statements

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

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Comparative Note. Both the Code and the Federal Rules recognize that a witness's credibility can be impeached by evidence that the witness has made statements that are inconsistent with the witness's testimony at the trial. Both also abandon the Common Law requirement that before witnesses can be asked about their prior inconsistent statements, the examiner must disclose the contents of the statement to the witness. Disclosure diminishes the effectiveness of the attack by removing the element of surprise and giving the dishonest witness an opportunity to reshape his testimony in conformity with his earlier statement. But under Rule 613(a), upon request, the examiner must show or disclose the prior inconsistent statement to opposing counsel. This provision is designed to discourage the examiner from insinuating that a statement has been made when the contrary is true. Under the Code, the opposing party can invoke the judge's authority to control the mode of a witness's interrogation to prevent the examiner from falsely suggesting the existence of a prior inconsistent statement.1

Both the Code and the Rules also reject the Common Law requirement that a party confront the witness with the prior inconsistent statement before offering extrinsic evidence of the statement. From an advocacy perspective, confronting the witness with the prior statement has advantages. The examiner may persuade the witness to acknowledge making the prior statement and to adopt it as reflecting the truth. If she fails in this endeavor, the examiner is still free to impeach the witness with the statement.

In some cases, however, the examiner may not want to confront the witness with his prior inconsistent statement. Disclosure may prevent the effective cross-examination of several collusive witnesses. Accordingly, both the Code and the Rules permit the examiner to forego confronting the witness. The examiner will still be allowed to offer extrinsic evidence of the statement, so long as the witness has not been excused from giving further testimony in the action. Since the witness remains subject to being recalled, the opposing party and the witness are afforded an opportunity to have the witness explain or deny the statement before the evidence is closed.

Where the interests of justice require, both the Code and the Rules permit the introduction of extrinsic evidence of an inconsistent statement even though the witness has been excused and has not had an opportunity to explain or deny the statement. "An absolute rule forbidding introduction of such evidence where the specified conditions are not met may cause hardship in some cases. For example, the party seeking to introduce the statement may not have learned of its existence until after the witness has left the court and is no longer available to testify."2

California Criminal Cases. A literal interpretation of the Right-to-Truth provision of Proposition 8 would repeal the Code limitations on the use of extrinsic evidence to prove a witness's prior inconsistent statement. Such a statement would be probative of the witness's credibility irrespective of whether the witness has been given an opportunity to explain or deny the statement before the close of the evidence. The California courts, however, have not decided whether the initiative has repealed these restrictions.3

Prior Inconsistent Statements and the Hearsay Rule. Under Evidence Code § 1235, a prior inconsistent statement may be received in California for the truth of the matter stated as well as to impeach the witness. Under Federal Rule of Evidence 801(d)(1)(A), however, the statement can be received for the truth of the matter asserted only if it was made "under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition * * *." If the statement was not made under these circumstances, it may be used only to impeach the witness.

§ 6.11 Rehabilitation by Prior Consistent Statements

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or
implied	charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

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CALIFORNIA EVIDENCE CODE

§ 791. Prior consistent statement of witness

Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

§ 1236. Prior consistent statements

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

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Comparative Note.

California Civil Cases. Evidence Code § 791 allows a party to support the credibility of witnesses with statements by the witnesses that are consistent with their testimony if one of two conditions is satisfied. First, if the witness was impeached with a prior inconsistent statement, the witness can be rehabilitated with a consistent statement, if the statement was made before the alleged inconsistent statement. Second, where the witness has been expressly or impliedly charged with fabricating his testimony or allowing bias or other improper motive to shape his testimony, the witness can be rehabilitated with a prior consistent statement if the statement was made before the motive to fabricate or other improper motive is alleged to have arisen.

California Criminal Cases. As discussed in § 6.03, a literal interpretation of the Right to Truth–in–Evidence provision of Proposition 8 repeals almost all statutory barriers and limitations on the use of relevant evidence in California criminal cases. Evidence that a witness has made statements that are consistent with his testimony is as probative of the witness's credibility as is evidence that the witness has made statements that are inconsistent with his testimony. A witness's credibility, after all, becomes an issue the moment the witness takes the stand. Accordingly, a literal application of Proposition 8 would repeal § 791 and permit parties in criminal proceedings to offer prior consistent statements to support the witness's credibility even though the witness's credibility has not been attacked.

Under Proposition 8, a judge can still exclude relevant evidence under § 352 if its probative value is substantially outweighed by such concerns as waste of time. A judge could thus find that the probative value of prior consistent statements that fail to satisfy the conditions of § 791 is so slight as not to justify the time needed to receive them. Whether a judge will use § 352 to exclude such statements in a given trial cannot be known. The judge's decision may well depend on her assessment of the need for the evidence and the time required to receive it. To be sure, neither the California Supreme Court nor the Court of Appeals has decided whether Proposition 8 repeals § 791, and cases decided since the adoption of the initiative in June 1982 assume the continuing validity of the section.1

Prior Consistent Statements and the Hearsay Rule. In California, prior consistent statements that are admissible under § 791 may also be received for the truth of the matter stated under § 1236.

Prior Consistent Statements Under the Federal Rules. Under Federal Rule 801(d)(1)(B), a witness's prior consistent statements may also be received to support the witness's credibility as well as for the truth of the matter asserted. A major difference between the Code and the Rules is that under the federal provision a prior consistent statement may be received only to rebut an express or implied charge of recent fabrication or improper influence. The Rules do not contain a provision equivalent to § 791(a) which permits the use of a prior consistent statement to rehabilitate a witness if the witness has been impeached by a prior inconsistent statement and the consistent statement was made before the inconsistent one.

Another difference between the Code and the Rules is that the Code makes it clear that, if offered to rebut an express or implied charge of recent fabrication or improper motive, the prior consistent statement can be received only if it was made before the improper motive arose. Rule 801(d)(1)(B) is not explicit in this respect. The United States Supreme Court, however, has interpreted the federal rule as requiring the rehabilitating party to show that the declarant made the consistent statement before the alleged fabrication or improper motive arose.2

§ 6.12 Examination of Witnesses—The Judge's General Powers

FEDERAL RULES OF EVIDENCE

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

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CALIFORNIA EVIDENCE CODE

§ 765. Court to control mode of interrogation

(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.

(b) With a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure that questions are stated in a form which is appropriate to the age or cognitive level of the witness. The court may, in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness.

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Comparative Note. Except as otherwise provided by law, a California trial judge has discretion to regulate the order of proof. Under Evidence Code § 765, discretion includes "reasonable control over the mode of interrogation of witnesses so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment and embarrassment."1 Rule 614 vests federal judges with similar powers over the interrogation of witnesses. But under § 765, a California judge owes child witnesses under age fourteen special solicitude.

With a witness under the age of 14, the court shall take special care to protect him or her from undue harassment and embarrassment, and to restrict the unnecessary repetition of questions. The court shall stake special care to insure that questions are stated in a form which is appropriate to the age of the witness. The court may in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age of the witness.

§ 6.13 Examination of Witnesses—The Order and Mode of Interrogation

FEDERAL RULES OF EVIDENCE

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

* * *

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

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CALIFORNIA EVIDENCE CODE

§ 760. Direct examination

"Direct examination" is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.

§ 761. Cross-examination

"Cross-examination" is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.

§ 762. Redirect examination

"Redirect examination" is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.

§ 763. Recross-examination

"Recross-examination" is an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness.

§ 764. Leading question

A "leading question" is a question that suggests to the witness the answer that the examining party desires.

§ 766. Responsive answers

A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.

§ 767. Leading questions

(a) Except under special circumstances where the interests of justice otherwise require:

(1) A leading question may not be asked of a witness on direct or redirect examination.

(2) A leading question may be asked of a witness on cross-examination or recross-examination.

(b) The court may, in the interests of justice permit a leading question to be asked of a child under 10 years of age or a dependent person with a substantial cognitive impairment in a case involving a prosecution under Section 273a, 273d, 288.5, 368, or any of the acts described in Section 11165.1 or 11165.2 of the Penal Code.

§ 772. Order of examination

(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination.

(b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins.

(c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness.

(d) If the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party.

§ 773. Cross-examination

(a) A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.

(b) The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.

§ 774. Re-examination

A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court's discretion.

§ 776. Examination of adverse party or person identified with adverse party

(a) A party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.

(b) A witness examined by a party under this section may be cross-examined by all other parties to the action in such order as the court directs; but, subject to subdivision (e), the witness may be examined only as if under redirect examination by:

(1) In the case of a witness who is a party, his own counsel and counsel for a party who is not adverse to the witness.

(2) In the case of a witness who is not a party, counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified.

(c) For the purpose of this section, parties represented by the same counsel are deemed to be a single party.

(d) For the purpose of this section, a person is identified with a party if he is:

(1) A person for whose immediate benefit the action is prosecuted or defended by the party.

(2) A director, officer, superintendent, member, agent, employee, or managing agent of the party or of a person specified in paragraph (1), or any public employee of a public entity when such public entity is the party.

(3) A person who was in any of the relationships specified in paragraph (2) at the time of the act or omission giving rise to the cause of action.

(4) A person who was in any of the relationships specified in paragraph (2) at the time he obtained knowledge of the matter concerning which he is sought to be examined under this section.

(e) Paragraph (2) of subdivision (b) does not require counsel for the party with whom the witness is identified and counsel for a party who is not adverse to the party with whom the witness is identified to examine the witness as if under redirect examination if the party who called the witness for examination under this section:

(1) Is also a person identified with the same party with whom the witness is identified.

(2) Is the personal representative, heir, successor, or assignee of a person identified with the same party with whom the witness is identified.

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Comparative Note. The Federal Rules of Evidence contain only two provisions regarding the mode of interrogation. Rule 611(b) provides that cross-examination "should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." The judge, however, is given discretion to permit inquiry into additional matters as if on direct examination. In addition, Rule 611 (c) prohibits the use of leading questions on direct examination unless needed to develop the witness's testimony. Rule 611(c) authorizes the use of leading questions on cross-examination, and specifically permits their use on direct examination when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

The provisions of the Evidence Code are much more detailed. First, unlike the Rules, § 764 defines a leading question ("one that suggests to the witness the answer that the examining party desires"), and § 767(a) specifies when leading questions may be asked (cross-and recross-examination) and may not be asked (direct and redirect examination). Like federal judges, California judges have discretion to deviate from these rules in the interest of justice. Section 767(b), however, specifically authorizes California judges in the interests of justice to permit leading questions to be asked of child witnesses in prosecutions for various forms of child abuse.

Second, unlike the Rules, § 772 specifies the order of examination of witnesses and defines each phase. The order consists of "direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination." Unless for good cause the court otherwise directs, § 772 provides that "each phase of the examination of a witness must be concluded before the succeeding phase begins."

Section 760 defines direct examination as "the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness." Section 761 defines cross-examination as "the examination of witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness." Section 762 defines redirect examination as "an examination of a witness by the direct examiner subsequent to the cross-examination of the witness", and § 763 defines recross-examination as "an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness." Although cross-examination, redirect examination, and recross-examination are generally limited to matters within the scope of the previous examination, § 772(c) vests judges with discretion to allow parties to examine the witness about matters beyond the scope of the previous examination.

Section 776 contains detailed rules regarding the examination of an adverse party or a person identified with an adverse party. As a general rule, a party or a person identified with that party may be called and examined as if under cross-examination by any adverse party. But the party's own counsel may cross examine the party only as if under direct examination. The same limitation applies to the cross-examination of a person identified with a party. Other rules specify when a person is identified with a party.

§ 6.14 Examination of Witnesses—Court Witnesses

FEDERAL RULES OF EVIDENCE

Rule 614. Court's Calling or Examining a Witness

(a) Calling. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present.

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CALIFORNIA EVIDENCE CODE

§ 775. Court may call witnesses

The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs.

<EN>---

Comparative Note. Federal Rule of Evidence 614 and Evidence Code § 775 authorize judges to call witnesses on their own motion or upon the motion of any party. The judge may examine the witnesses, and the parties may cross-examine them. In addition, the parties may object to the judge's questions and the witnesses' answers. In jury trials, however, a party under the Rules may object to the judge's questions or the witness's answers at the next available opportunity when the jury is not present. This provision is designed to avoid the prejudice that might ensue if a party is forced to object to the judge's examination of witnesses in the presence of the jurors. The Code does not contain this protection.

§ 6.15 Examination of Witnesses—Exclusion of Witnesses

FEDERAL RULES OF EVIDENCE

Rule 615. Excluding Witnesses

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or

(d) a person authorized by statute to be present.

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CALIFORNIA EVIDENCE CODE

§ 777. Exclusion of witness

(a) Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.

(b) A party to the action cannot be excluded under this section.

(c) If a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present.

<EN>---

Comparative Note. Federal Rule of Evidence 615 and Evidence Code § 777 seek to discourage fabrication on the stand by allowing judges "to put witnesses under the rule." At the request of a party or on its own motion, the court may order witnesses to be excluded so that they cannot hear the testimony of other witnesses. Under the Code and the Rules, the following cannot be excluded: a party who is a natural person, or an officer or employee of a party not a natural person and designated as its representative by its attorney. In addition, the Rule 615 forbids the exclusion of "a person whose presence is shown by a party to be essential to the presentation of the party's cause" and "a person authorized by statute to be present."

§ 6.16 Examination of Witnesses—Refreshing Recollection

FEDERAL RULES OF EVIDENCE

Rule 612. Writing Used to Refresh a Witness's Memory

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross- examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or--if justice so requires--declare a mistrial.

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CALIFORNIA EVIDENCE CODE

§ 771. Production of writing used to refresh memory

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.

(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.

(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:

(1) Is not in the possession or control of the witness or the party who produced his testimony concerning the matter; and

(2) Was not reasonably procurable by such party through the use of the court's process or other available means.

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Comparative Note. Sometimes, a witness is unable to answer a question or to answer it fully because of poor recollection. Whenever that occurs, the examining lawyer is allowed to try to refresh the witness's recollection of the matters inquired. If the lawyer succeeds in refreshing the witness's recollection, the lawyer is entitled to have the witness answer the question left unanswered.

Federal Rule 612 and Code § 771 are quite liberal with respect to the sources that can be used to refresh a witness's recollection: anything, including a writing, can be used. If a writing is used, the opposing party is entitled to examine it before the witness may be asked any questions about the writing. If the witness's recollection is in fact refreshed by the writing, the opposing party may use the writing in cross examining the witness and may introduce such parts as are pertinent to the witness's testimony.

If a California witness uses a writing to refresh her recollection prior to testifying, then under § 771 the writing must be produced at the hearing at the request of the opposing party. If the writing is not produced, the judge must strike the witness's testimony unless the writing is not in the possession or control of the witness or the party eliciting the testimony, and was not reasonably procurable by the party through the use of the court's process or other available means.

Under Rule 612, the adverse party is entitled to have the writing produced only if the court in its discretion determines that production is necessary in the interests of justice. If the writing is not produced, a federal judge has greater latitude than a California judge in imposing sanctions. Rule 612 provides that "the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial." According to the Advisory Committee Note, in civil cases, a federal judge may in addition impose such remedies as contempt and finding issues against the offender.

§ 6.17 Examination of Witnesses—Child Witnesses

CALIFORNIA EVIDENCE CODE

§ 1228. Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant

Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused of violating Section 261, 264.1, 285, 286, 288, 288a, 289, or 647a of the Penal Code, a court, in its discretion, may determine that a statement of the complaining witness is not made inadmissible by the hearsay rule if it finds all of the following:

(a) The statement was made by a minor child under the age of 12, and the contents of the statement were included in a written report of a law enforcement official or an employee of a county welfare department.

(b) The statement describes the minor child as a victim of sexual abuse.

(c) The statement was made prior to the defendant's confession. The court shall view with caution the testimony of a person recounting hearsay where there is evidence of personal bias or prejudice.

(d) There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any element of the crime or the identification of the defendant, that would render the statement unreliable.

(e) The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify.

(f) The confession was memorialized in a trustworthy fashion by a law enforcement official.

If the prosecution intends to offer a statement of the complaining witness pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement.

If the statement is offered during trial, the court's determination shall be made out of the presence of the jury. If the statement is found to be admissible pursuant to this section, it shall be admitted out of the presence of the jury and solely for the purpose of determining the admissibility of the confession of the defendant.

§ 1360. Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements

(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:

(1) The statement is not otherwise admissible by statute or court rule.

(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(3) The child either:

(A) Testifies at the proceedings.

(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.

(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

(c) For purposes of this section, "child abuse" means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and "child neglect" means any of the acts described in Section 11165.2 of the Penal Code.

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Comparative Note. California has responded to concerns about child abuse and molestation by enacting laws that allow children in some cases to avoid appearing as witnesses. California follows the corpus delicti doctrine. To protect a criminal defendant against the possibility of conviction upon a false confession, the doctrine provides that no person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession claimed to have been made by the defendant.1 Combined with the hearsay rule, the corpus delicti doctrine typically requires prosecutors to call crime victims, if available, to establish the elements of the offense charged before offering confessions claimed to have been made by the accused.

Section 1228 of the Evidence Code relaxes this requirement in the case of child witnesses who have been the victims of enumerated sexual abuse offenses. This section empowers the trial judge to admit for the truth of the matter stated the extra-judicial statements of complaining witnesses under age twelve if they are unavailable and their statements describe the complaining witness as a victim of sexual abuse, were made prior to the defendant's confession, and possess circumstantial guarantees of trustworthiness. The hearsay exception created by § 1228 is a narrow one, however; the statement may be received only for the limited purpose of satisfying the corpus delicti doctrine. The statement may be considered by the judge in determining the admissibility of the defendant's confession but may not be heard or considered by the jurors in determining the defendant's guilt.

In 1995 the California Legislature added a new hearsay exception to the Code. Section 1360 provides an exception for statements describing any act of child abuse or neglect made by a child-victim under twelve and offered in a criminal prosecution while the child-victim is still a minor. To be admissible under § 1360, the court must find in a hearing conducted outside the presence of the jury that the time, content, and circumstances surrounding the statements provide sufficient indicia of reliability. In addition, either the child must testify at the hearing or, if unavailable, other evidence corroborates the child's out of court statements. Finally, the proponent of the statement must give notice to the adverse party sufficiently in advance of the proceeding as to provide the opponent with a fair opportunity to defend against the statement. In the case of a jury trial, the notice must be given before the jurors have been sworn.

Whether §§ 1228 and 1360 violate the accused's right to confront his accusers is beyond the scope of this work.

The Federal Rules do not contain provisions similar to §§ 1228 and 1360.

§ 6.18 Examination of Witnesses—Other Provisions

CALIFORNIA EVIDENCE CODE

§ 711. Confrontation

At the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

§ 766. Responsive answers

A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.

§ 768. Writings

(a) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to him any part of the writing.

(b) If a writing is shown to a witness, all parties to the action must be given an opportunity to inspect it before any question concerning it may be asked of the witness.

§ 778. Recall of witness

After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court's discretion.

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Comparative Note. The Code contains four provisions relating to witnesses not found in the Federal Rules.

Section 778 provides that a witness who has been excused from giving further testimony may not be recalled without leave of the court. Leave is discretionary with the court.

Section 766 provides that a witness must give answers that respond to the questions asked. Answers that are not responsive must be stricken on motion of any party. The latter provision is useful in controlling witnesses who are more intent in telling their side of the story than in responding to the questions posed. Federal practice is to allow an adverse party to strike an unresponsive answer only if it is also irrelevant.

Section 711 provides that at the trial a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine. This provision is not limited to criminal cases, where the accused is the beneficiary of the Sixth Amendment's Right of Confrontation,1 but applies as well to all parties in both civil and criminal trials. The provision is consistent with the ideal conditions for taking testimony—under oath and subject to cross-examination in the presence of the fact finder.

Section 768 provides that in examining a witness about a writing, it is not necessary to show, read, or disclose any part of the writing to the witness. But if a writing is shown to a witness, all parties to the action must be given an opportunity to inspect it before any question concerning the writing can be asked of the witness.