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5 Tips for Crafting a Clear Opening Statement or Closing Argument

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Clarity is key. To be persuasive, the meaning of opening statements and closing arguments must be clear to the jury. Here are five tips for attaining clarity, with illustrative examples for each.

1. Invoke commonality. One way to communicate clearly with the jury is to refer to commonly shared experiences. Consider the following statements, which have been used effectively to introduce legal issues:

We all vote and somehow we wonder if our vote ever gets counted. I don’t think, unless some of you are lucky enough to be elected a state representative or something, you will ever vote on anything so significant in your life.

We have the right to assume safety and not danger when we use business facilities, particularly when we’ve paid to get in.

2. Pare down to essentials. Economy of expression is intrinsic to clarity. An effective model of style to follow is one that presents the bare facts early in the opening. The following sentences, unadorned by peripheral elements, illustrate such economy:

The trouble began when Ida and Phil Pearce purchased what they called a vacation home in Idyllwild in April of 2007.

They camped right on the river in designated campsites. Then they got into the river, and within 20 to 30 minutes or so, Norman was a quadriplegic.

Those sentences also illustrate the natural alliance of clarity and economy of expression with a narrative approach: using a straightforward declarative statement with events structured to show how and when they occurred.

3. Use simple sentence structure. Particularly when an idea doesn’t lend itself to narrative presentation, you can often achieve clarity and economy by using the simplest sentence patterns, i.e., a single clause, in the active voice:

The issue here is malice.

4. Impose order. The complexity of some cases might seem to defy the goal of economy and thus undermine clarity, but there are ways to retain clarity in presenting even the most labyrinthine set of facts and issues. One way is the put the facts and issues in some order; stress internal order when the facts aren’t amenable to chronological presentation. First, tell the jurors about the need to order the topics to be presented:

I would like to tell you, in summary form, what that evidence is so you can more readily understand it going in, and then go into more detail a bit later.

Giving appropriate background material can also help to achieve order and promote clarity:

Let me just tell you a bit about what the evidence is going to disclose about the International Football League. The International Football League was founded in 1920. The league is 67 years old and the families who originally owned the teams in the league still do.

5. Cue the ending. Language indicating that a line of argument is ending can also enhance clarity, as can transitional language showing that a new topic is about to be discussed:

I could go on with countless other examples, but I believe the point has been made.

Next, I would like to discuss the subject of damages.

Get more expert guidance on preparing and presenting your statements and arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. And don’t miss the opportunity to learn from top trial attorneys in CEB’s program Persuasive Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.


FAQs about Redirect Examination

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After the other side has had a chance to cross-examine your witness, you get another bite at the apple—redirect examination. Knowing when and how to do redirect is key.

  1. When should you do redirect examination? Redirect examination may not be necessary unless some inconsistency or confusion was created by the cross-examination. In a sense, extensive redirect examination is an admission that the cross-examiner was successful in shaking the witness’ testimony. But even though cross-examination is limited to the scope of direct examination, it may bring up matters that require amplification. During redirect examination, you may want to elicit additional testimony to correct any erroneous impressions or offset any incorrect inferences from the cross-examination. You may also elicit additional testimony on redirect to rehabilitate a witness whose credibility may have been damaged.
  2. What are the rules for redirect examination? Redirect examination is conducted in the same manner as direct examination, and the same rules apply on the use of leading questions. See Evid C §767(a)(1). Examination of the witness is generally limited to the scope of the cross-examination. See Evid C §774. And once a party has examined a witness about a matter, the witness may not be re-examined about the same matter without the court’s permission.
  3. How long should redirect examination take? After an attorney has successfully examined a witness on direct examination, and that witness has then survived cross-examination, the attorney’s usual objective is to get the witness promptly off the stand. Any prolonged period of redirect examination increases the opposing counsel’s time to think of questions for recross-examination that can damage the ultimate impact of the witness. The best practice is to keep any redirect short and to the point.
  4. Are there special considerations for using redirect examination of an expert witness? If the witness is an expert who clearly knows more about the subject at hand than the interrogator, cross-examination will highlight this fact to the jury and weaken the cross-examiner’s case. This is a good opportunity to let the strong expert witness show, through additional testimony on redirect examination, that the witness had a particularly good basis for observing or recollecting the previously testified to facts, thereby further emphasizing his or her credibility.

Have you used redirect examination successfully? Share your stories in the comments. For practical guidance on all aspects of examining witnesses, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 11. And definitely check out CEB’s Effective Direct and Cross-Examination.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

How to Put Partial Evidence in Complete Context

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When evidence presented during direct examination is distorted by being taken out of context, you can counteract that distortion by invoking the rule of completeness.

The “rule of completeness” provides that, when only part of an act, conversation, statement, or document comes into evidence, the opposing party may introduce other relevant parts of that act, conversation, statement, or document. Similarly, when an isolated act or document is introduced, other acts or writings “necessary to make it understood” may be introduced. Evid C §356.

Three things to know about the rule of completeness:

  1. It allows introduction of otherwise inadmissible evidence. The rule of completeness may be invoked to introduce otherwise inadmissible evidence if your opponent “opens the door” by introducing part of the picture that you now need to complete. If you have favorable but inadmissible evidence (a common example being a client’s prior self-serving statements), be alert for occasions to offer such evidence when your opponent introduces partial evidence out of context that unfairly misleads the jury about what actually happened.
  2. The remaining portion still has to be relevant. Section 356 “only makes admissible such parts of an act, declaration, conversation, or writing as are relevant to the part thereof previously given in evidence.” Comment to Evid C §356. It doesn’t necessarily follow that because a portion of a writing was introduced on direct examination, all the remaining portions can be read into the record on cross-examination. A portion omitted during direct examination should be excluded on cross-examination if it’s not necessary to put the direct examination in its true context.
  3. It can open the door to other evidence. Section 356 provides that the witness may be cross-examined on independent acts, declarations, conversations, or writings to clarify the act, declaration, conversation, or writing testified to on direct examination. But keep in mind that a court’s refusal “to admit statements from a conversation or interrogation to explain statements made in a previous distinct and separate conversation,” isn’t an abuse of discretion under Evid C §356. People v Johnson (2010) 183 CA4th 253, 287.

Here’s how the rule of completeness worked in one case: A police officer called by the plaintiff testified that the defendant had told him that he had gone through the intersection at 30 miles per hour while the light was red. Under former CCP §1854 (the predecessor of Evid C §356), it was held proper on cross-examination to elicit from the police officer that the defendant had also immediately stated that he had experienced a brake failure. By introducing evidence of part of what the defendant had told the officer as an admission against the defendant, the plaintiff opened the door to the defendant’s evidence of the remainder of his statement, even though the defendant’s use of that statement would ordinarily have been barred by the hearsay rule. Rosenberg v Wittenborn (1960) 178 CA2d 846.

Strategic consideration: If you’re the proponent of evidence of part of a statement or writing, anticipate context objections and consider blunting them by introducing the entire statement or writing, or other appropriate statements and writings, including both favorable and unfavorable evidence. You’ll avoid appearing unfair, and you’ll mitigate your opponent’s ability to highlight the unfavorable evidence.

Learn more about the rule of completeness and how to use it effectively in CEB’s Effective Introduction of Evidence in California, chap 46 and Jefferson’s California Evidence Benchbook, chap 20.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Revisiting the Dying Declaration Exception

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life and death; dying declarant must believe death is imminentThe “dying declaration” exception to the hearsay rule just jumped from law school textbooks onto California newspapers: A young woman who was stabbed and bleeding told officers about who had assaulted her shortly before she died, leading to the arrest of two suspects. It’s time to review what’s required to meet this hearsay exception.

Here are the basics. Evidence of a hearsay statement of a declarant is admissible in both civil and criminal cases under the hearsay exception for a dying declaration if all of the following are true (Evid C §1242):

  1. The statement concerns the cause and circumstances of the declarant’s death;
  2. The declarant had personal knowledge of the facts constituting the cause and circumstances of the declarant’s death;
  3. The declarant was under a sense of immediately impending death at the time the statement was made; and
  4. The declarant is unavailable as a witness because of having died.

These requirements are pretty straightforward, but there can be confusion as to the third one. Did the declarant really believe his or her death was imminent? The theory of trustworthiness underlying this exception is that a person who thinks death is imminent is apt to tell the truth about the cause of the illness or injury.

Evidence of the sense of immediately impending death may be found in the declarant’s own words as a part of the statement, but that’s not essential. You can determine the declarant’s belief that death is imminent based on the surrounding circumstances as testified by witnesses, such as the declarant’s physical condition, the nature of any wounds or injuries, and the declarant’s conduct and statements. For example, in People v Adams (1990) 216 CA3d 1431, 1440, the declarant’s statement was made after he decided not to artificially prolong his life.

Here’s an illustrative example of the declarant’s belief in impending death:

Paramedic P finds victim V leaning against a wall, bleeding profusely from gunshot wounds to his head and neck. V says, “Please don’t let me die.” P assures V that he will not let him die. V is alert and oriented. In the ambulance, P tells V that he is being taken to a trauma center and again assures him he will survive. V answers that the assurances are “bullshit.” He states, “I feel like I am going to die.” At the trauma center V answers questions about what happened and states that D shot him. V repeats D’s name several times to an officer and describes the color of D’s hair and his clothing. V is then taken to surgery, where he dies. Over defense counsel’s objection, the trial judge rules that V’s statements are admissible under the totality of the circumstances. (See People v Sims (1993) 5 C4th 405, 457.)

Is the trial court’s ruling correct? Yes. D argued in Sims that V’s statements to P not to let him die demonstrated that he didn’t believe in his immediately pending death. The Sims court pointed out that there’s no incompatibility between the belief of a mortally wounded victim that he’s about to die and his desire to receive possible benefit from immediate medical treatment. V’s plea for help reflected his belief that his condition was critical. Therefore, even had he not later expressed skepticism about P’s assurances, his statements would still be admissible.

And the belief that death is imminent doesn’t have to be correct. The dying declaration exception is available even if the declarant didn’t die immediately, as long as he or she believed death was imminent at the time of making the statement. People v Monterroso (2004) 34 C4th 743, 762.

It will be interesting to see whether the dying declaration exception will be used in the recent case of the stabbed woman. It’s also interesting to ponder whether it would be similarly applicable had she texted her statement instead of spoken it. What do you think?

Find more detail on dying declarations and additional illustrations of the rule in Jefferson’s California Evidence Benchbook, chap 7. Also check out CEB’s Effective Introduction of Evidence in California, chap 22 for sample questions to ask a witness when establishing this exception.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

For Richer or Poorer: Don’t Discuss a Party’s Financial Status with the Jury

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woman zipping her mouth shut so she won't discuss parties' financial status with juryMany of us were taught that it’s impolite to refer to someone’s financial status. In a courtroom, it may also be misconduct.

You may be very tempted to tell the jury about the defendant’s abundant resources or the plaintiff’s likelihood of filing for bankruptcy. But commenting on a party’s financial status could get you into hot water with the judge.

References to financial status in opening statements and closing arguments are usually improper because, as stated in Hoffman v Brandt (1966) 65 C2d 549, 552,

[j]ustice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case.

Courts have found improper arguments in which a plaintiff’s attorney focused on the relative greater wealth of a defendant in contrast to his or her client, or that the plaintiff was an object of charity. For example:

  • It was improper for a contractor suing the city of Los Angeles to refer to the city’s $60-million-per-year public works budget and to an amount larger than his claim as “peanuts” to contrast the wealth of the defendant to the relative poverty of the plaintiff. Warner Constr. Corp. v City of Los Angeles (1970) 2 C3d 285, 302 n22.

  • Arguing that a plaintiff is poor and would become a burden on the taxpayers and the object of charity was improper, but not prejudicial given the court’s admonishment. Hart v Wielt (1970) 4 CA3d 224.

Similarly, courts have found improper arguments in which a defendant’s attorney focused on how a verdict against the defendant would reduce the defendant to indigency or in which a defendant’s attorney simply focused on whether the defendant could pay a judgment. For example:

  • It was improper and constituted reversible error for defense counsel to argue that a verdict against his client would force the client to move into a home for the indigent. Hoffman v Brandt (1966) 65 C2d 549, 551.

  • For defense counsel to refer to a defendant’s ability or inability to pay a judgment, if rendered, is improper and may be reversible. Tomson v Kischassey (1956) 144 CA2d 363, 369.

Referring to financial status is just one area of potential misconduct during opening statements and closing arguments. Wondering what other areas are out-of-bounds? Check out CEB’s Persuasive Opening Statements and Closing Arguments, chap 3. And get practical pointers from expert trial attorneys on crafting and delivering effective opening statements and closing arguments in CEB’s program Effective Approaches to Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Things to Consider When Preparing a Young Witness

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girl covering her mouth before testifying in courtWhen it comes to preparing a child to testify at trial, there are at least three things that differ from preparing an adult witness.

  1. The focus should be on putting the child at ease. A child may be very frightened at the prospect of having to testify. It may help alleviate this fear to take the child and parents on a tour of the courtroom where the trial will take place. It’s important to analyze each child individually to determine how best to prepare that child. It may be best to just talk with the child to learn what he or she remembers, or you may want to ask the child questions in a non-leading manner to make the child more comfortable answering questions.
  2. The court may permit leading questions on direct. In appropriate circumstances, the court may allow an attorney to ask a child leading questions during direct examination to elicit accurate testimony. Similarly, leading questions may be permitted to refresh recollection. But be sure to carefully prepare a young witness to testify and don’t rely on the court permitting you to lead the witness simply because he or she is a child. Under Evid C §765(b), the court must take special care to protect witnesses under age 14 from undue harassment or embarrassment and to restrict unnecessary repetition of questions.
  3.  The attorney-client privilege includes a guardian ad litem. The attorney-client privilege is broader when it comes to young children because it’s been applied to statements made by the child in response to questions asked by a guardian ad litem at the request of the child’s attorney, either to prepare the child’s answers to interrogatories or to help the attorney prepare for trial. See De Los Santos v Superior Court (1980) 27 C3d 677 (matters that minor communicates to attorney for purpose of prosecuting or defending action are subject to attorney-client privilege whether guardian obtains knowledge by presence at consultation between attorney and minor or secures information from minor for transmission to attorney). The rationale of De Los Santos appears to apply generally when preparing a minor to testify at trial.

Witness preparation is extremely important to success at trial. Get more practical advice on preparing all types of witness for trial in CEB’s California Trial Practice: Civil Procedure During Trial, chap 5. For in-depth coverage of preparing expert witnesses to testify, check out CEB’s California Expert Witness Guide, chap 12. And let the experts walk you through choosing and preparing your witnesses in CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Times Not to Ask Leading Questions on Cross

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attorney questioning witness during cross-examinationLeading questions are the main tool of the cross-examiner—they tell a witness how to answer by suggesting an answer. See Evid C §764. But you should also know when using leading questions on cross-examination isn’t the best technique.

There’s a general rule for cross-examination that you can best control the witness with leading questions. This is true, but it’s not absolute. There are situations in which leading questions may not be the way to go. For example, when you are dealing with one of the following types of witnesses:

  • Very hostile witness. Some witnesses may be so hostile to counsel that they will have a knee-jerk reaction when asked a leading question. They will figure out the answer desired, and try to give the opposite answer. In this situation, you may not want to ask leading questions. Or maybe ask leading questions with “reverse psychology,” i.e., questions that sound as though they call for an answer different from the answer really wanted.
  • Witness with helpful testimony. When an adversary’s witness provides testimony that helps you, use your cross-examination to further develop the helpful testimony by asking gentle, open-ended questions. For example, in a first-degree murder case, a witness was called by the prosecution to establish the effect of certain drugs found in the victim’s blood on the victim’s ability to think and function. The expert was impressive and knew precisely what levels of barbiturates would impair an individual’s ability to think clearly. On cross-examination, defense counsel carefully led the expert to expand this testimony, creating the factual basis for a diminished capacity defense for the defendant who had ingested substantial barbiturates before going to the victim’s house.
  • Rambling witness. If you know from prior examination (or sense it during direct examination) that a witness is long-winded and unpleasant, you may not want to control the witness closely with leading questions. Always encourage the worst in the adversary’s witnesses. If the adversary witness is a rambling blowhard, give the witness room to show her character to the jury. By contrast, a crisp and disciplined examination, particularly with a judge who insists on keeping the witness in bounds, may hurt you in two ways: (1) the witness’s bad side won’t be exposed, and (2) the jury may think that you’re trying to hide something by reining in the witness with the court’s assistance.

Experienced trial attorneys know the rules that generally apply to cross-examination, but they also know when to deviate from them. Controlling a witness with leading questions is generally effective when used in moderation, but it won’t work well with every witness. Learn all of the time-honored rules of cross-examination and when to break them in CEB’s Effective Direct and Cross-Examination, chap 4. And check out the expert advice in CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog™ posts on cross-examination:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Get a Crash Course from Your Expert

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Learn fast from your expert about the area of expertiseSome lawyers decide at the beginning of a case that they’ll never be able to understand what the expert is talking about, and they make no effort to do so. Bad plan! Regardless of the expert’s skill, it’s the lawyer’s responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To do that, the lawyer needs to understand the expert’s testimony and field of expertise. Here are four ways to educate yourself fast.

View the expert as a teacher. Eventually, you may want the expert to teach the judge or jury, but first learn from the expert yourself. Here’s how to do it:

  1. Ask questions. Ask when you don’t know the meaning of technical words or have no idea what the expert is talking about. Don’t worry if the same subject has been discussed or explained already. Just ask—even if that means burying your pride. If you don’t understand what the expert is saying, the average juror won’t either.
  2. Learn the relevant vocabulary. Virtually every field has its own vocabulary. You need to “crack the code” and learn enough words to converse intelligently with the expert. When the expert uses unfamiliar words, make the expert define them. If necessary, keep a list of words and definitions. Learning the jargon will make it easier to read the literature and become familiar with the subject, and it will give you added self-confidence when deposing opposing experts. Most importantly, it allows you to conduct successful cross-examinations of opposing experts, coach your own experts so that they testify in a way that the judge and jury understand, and act as a “translator” during closing argument to make sure the jury fully understands the expert’s testimony.
  3. Read necessary literature. Although talking with one’s own expert is probably the best way of learning about a new subject, reading about it will greatly improve your overall understanding of the field and ability to discuss and challenge the ideas and theories of the experts. Your expert can give you the name of a good basic treatise for general background and articles or papers dealing with the precise issue. You should also read all available reports and material already generated in the case before meeting with the expert. If you have questions about the meaning or significance of any of the information in those materials, use at least some of the time with the expert to have those questions answered.
  4. View tests, experiments, and inspections. If a case involves an accident or a crime scene that must be inspected, a condition that must be duplicated, or a series of physical tests that must be run, consider attending these activities. This will allow you to observe the expert in a setting other than the office or deposition room, develop a rapport with the expert, increase your knowledge of the field, and consider how you’ll use the evidence at trial. Of course, don’t get in the expert’s way—just observe and write down thoughts, questions, and ideas for later discussion.

For guidance from experienced trial attorneys on all aspects of dealing with your own expert, turn to CEB’s California Expert Witness Guide, chap 8. Also check out CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions, and Cross-Examination, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.


Begin and End with Your Strongest Questions

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use strong question to open and close your cross-examination of a trial witnessWhen cross-examining a witness, almost always begin and end with your strongest questions. Except in a couple of situations.

Many attorneys begin cross-examination of witnesses with the verbal equivalent of clearing their throats. They ask routine questions about employment, or other peripheral matters. This is not the way to go.

Start with a bang! A good way to begin your examination with flair is to open with the question that may elicit an answer that will damage the witness and the adversary’s case. For example,

Mr. Jones, didn’t you overstate the net worth of your company by $15 million when you sold it to my client, the ABC Corporation?

or

Ms. Smith, haven’t you made most of your money the past 3 years by being a paid informant for the government?

Ideally, you’ll end your examination with a question and answer showing the witness to be a deliberate liar, so biased as to be unworthy of belief, or completely supportive of your client’s case.

But if you’re not fortunate enough to have the materials to end that way, you can still try to go out on a high note. Carefully draft a set of safe “exit questions” and reserve them until the end of your examination.

But there are situations in which you’ll want to ignore the rule to start and end strong. For example:

  • You have more to ask. You should not sit down after a strong question if there’s still other important material to cover. If you’ve prepared good exit lines, you’ll still have a strong question to conclude with after covering other areas.

  • The jury isn’t ready for a bang. Before asking important questions, whether at the beginning or end of examination, gauge the time of the day, the attentiveness of the jury, and the total length of the anticipated examination. If an examination is begun at 4:00 p.m. after a long, wearying day, you shouldn’t leap into important areas immediately. Rather, go over less important matters, and begin the meat of the examination early the next morning, when the jury and judge are fresh.

Learn about all of the time-honored rules of cross-examination—and when to break them—in CEB’s Effective Direct and Cross-Examination, chap 4 and in CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

What You Can’t Ask a Juror During Voir Dire

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potential jurors waiting to be questioned by the attorneys and the judgeWhen selecting a jury for a civil trial, counsel has pretty wide latitude in terms of the scope of voir dire questions. But there are limits.

Counsel has a basic right to examine prospective jurors to ascertain whether grounds exist to challenge them. CCP §222.5(b)(1). (Voir dire in criminal cases is governed by CCP §223). The constitution guarantees the right to unbiased and unprejudiced jurors, so counsel can ask questions to ascertain whether the prospective jurors are free from bias or interest that may affect the verdict.

But there are some places counsel just can’t go. Certain types of questions and areas of inquiry are improper and shouldn’t be permitted by the court except in unusual circumstances. Cal Rules of Ct, Standards of J Admin 3.25(f). These include questions that

  • Precondition the prospective jurors to a particular result;
  • Comment on the personal lives and families of the parties or their attorneys;
  • Concern the pleadings, the applicable law, the meaning of particular words and phrases; or
  • Focus on the comfort of the jurors.

Voir dire questions also may be excluded if they appear to be intended solely to accomplish one of the following improper purposes:

  • To educate the jury panel to particular facts of the case;
  • To compel jurors to commit themselves to vote in a particular way;
  • To prejudice the jury for or against a particular party; or
  • To argue the case.

There is some leeway here. If the question argues the case, the court can require counsel to rephrase it in a neutral, nonargumentative form. And a question that’s fairly phrased and legitimately directed at obtaining knowledge for the intelligent exercise of peremptory challenges may not be excluded merely because it may indoctrinate or educate the jury.

If you think that certain questions are important, but there’s danger of an objection either by opposing counsel or the court, you should explore the issue with the court at the final status or pretrial conference.

Get guidance on all aspects of jury selection in civil cases, including sample juror questions and a jury box chart, in CEB’s California Trial Practice: Civil Procedure During Trial, chap 8. And check out CEB’s program Tips and Strategies for Your Next Voir Dire, available On Demand.

Other CEBblog™ posts on jury selection:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Are You Showing Enough in an Offer of Proof?

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attorney making offer of proof to judge at trialWhen the opposing side objects to your evidence or the judge rules your evidence inadmissible, it’s time to make an offer of proof to encourage the court to admit the evidence or reconsider its ruling. Here’s a handy table illustrating how much of a showing is necessary in an offer of proof.

Offers of proof must be specific, setting out the actual evidence to be produced. Focus on the requirements: the substance, purpose, and relevance of excluded evidence. Evid C §354(a).

This table compares sufficient and insufficient showings for common issues in an offer of proof:

  • A showing that the evidence is available:
Sufficient Showing Insufficient Showing
Mrs. Jones is waiting in the hall and is prepared to testify that … We want to put on some evidence that …
  • A specific summary of the substance of the evidence:
Sufficient Showing Insufficient Showing
Mrs. Jones would testify that she saw Mr. Smith at the scene of the crime. Mrs. Jones would testify about what she saw.
  • A specific showing of the purpose of the evidence:
Sufficient Showing Insufficient Showing
Mrs. Jones’ eyewitness testimony would conclusively establish the presence of another person at the scene. Mrs. Jones’ testimony would show that my client is innocent.
  • A specific showing of the relevance of the evidence:
Sufficient Showing Insufficient Showing
Mr. Smith’s presence at the scene near the time of the robbery is a relevant fact that the jury should consider in determining whether or not my client was in fact the man who took Mr. Victim’s wallet. Mrs. Jones’s testimony hurts the prosecution’s case.

How you approach an offer of proof will depend on your purpose. Are you trying to convince the judge or are you trying to set up a reversal on appeal, or both? If you’re looking toward appeal, and your offer of proof is in the form of a document that the trial court has excluded, make sure that it’s marked for identification or is otherwise included in the record.

Learn how to combat objections to evidence through offers of proof and motions in limine in CEB’s Effective Introduction of Evidence in California, chap 3. And check out CEB’s program Evidence: How and Why to Make an Offer of Proof.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 Direct Examination Techniques You Should Be Using

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When conducting direct examination of a party or witness, how you ask the questions can be as important as what you ask. Review and apply these five direct examination techniques every time.

  1. Speak in a comfortable style. Use a conversational tone that’s loud enough for all to hear and can encourage a witness to speak out. Maybe sit or stand near the jury to make sure that the witness speaks toward the jury loudly enough to be heard.
  2. Choose the best sequence. There’s no “correct” order of questions, just outline what seems to be the best sequence for each examination you do. Some trial attorneys try to begin and end on a strong point, feeling that jurors are most attentive and receptive then. Others stick to a strict chronological order or to the sequence in which the issues in the case will be argued.
  3. Phrase questions carefully. Questions asked on direct examination should be short, direct, and require a single, specific answer. Don’t refer to inadmissible matter. You can’t stop adverse counsel from objecting, but proper phrasing can reduce the chances that objections will be sustained and discourage opponents from constantly interrupting.
  4. Watch your semantics. Avoid unusual words and legal jargon. Many witnesses and jurors don’t understand words like “prior,” “subsequent,” “plaintiff,” “deposition,” “interrogatories,” and “statement.” And don’t lapse into the jargon of the witness, especially one testifying as an expert. There’s a risk that you’ll become distracted by your own self-satisfaction in understanding a witness’ testimony that you’ll forget the main purpose of the examination: to inform and convince the trier of fact. And keep in mind that the words you use can subtly influence the thinking of judges and jurors. For example, plaintiffs’ lawyers often refer to the injuries that their clients “suffered”; defense attorneys often speak of injuries “experienced” or “claimed.”
  5. Apply strategy to names. You’ll usually refer to and address your client by name—although generally not by first name only. Using a client’s name can reinforce the idea that the client is a person who deserves the jury’s sympathy and support. By contrast, referring to adverse parties in depersonalized terms like “the plaintiff” or “the defendant” can have the opposite effect. When it comes to witnesses, addressing them by name tends to encourage jurors to remember them and their testimony. Using titles such as “doctor” and “officer” may suggest or reinforce a witness’s competence or authority.

Learn more about examining witnesses in personal injury matters in CEB’s California Personal Injury Proof, chap 1, and generally in CEB’s Effective Direct and Cross-Examination. Also check out CEB’s program Evidence: Tips for Effective Direct and Cross Examination.

Other CEBblog™ posts on direct examination:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Tips for Plaintiff’s Closing Argument

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plaintiff's lawyer talking to jury during closing argumentA plaintiff‘s closing argument must focus on linking the plaintiff’s claims to the evidence. However when a jury is involved, you’ll need to do more than that. Here are three tips from expert trial attorneys for an effective closing argument.

1. Build rapport back up. There’s often considerable time between opening statements and closing arguments. The credibility and friendliness you may have earned early in the case may have dissipated. Use the start of your closing argument to reestablish rapport with the jury. For example, start out by saying: “I would first like to thank each of you for your careful attention to the evidence in this case.”  Or something like this:

Good morning. When I left the courtroom yesterday at 4:15, Susan Quesada, our very efficient clerk, gave me some good advice. She said, Mr. Anderson, don’t argue too long and bore the jury. I certainly believe that is probably the best advice that I ever heard. We lawyers think that we have to go on and on, but you know that already. Nevertheless, there are certain things that I do want to tell you about this case.

2. Start with something that the jury can accept. The actual argument (as opposed to preliminary remarks) of your closing should start with a proposition that jurors can accept, coupled with direct jury involvement, i.e., a proposition that appeals to the jurors’ interest in justice, in doing right. For example,

When I first learned of this case, I knew then what you know now, namely, that this tragic accident—this catastrophe—this unfortunate event that was just waiting to happen, never, never, never should have occurred, and Norman should never, never, never have sustained or received the horrendous injuries which have crippled him for life.

Before we go further, let me give you a helpful tool which you can use in weighing the evidence and the issues in the case.

3. Get to your rebuttal early. Some attorneys offer the rebuttal to the defense interpretations at the end of the closing or through a separate rebuttal on the theory that if the jurors walk away from arguments satisfied that the defense position has been rebutted they’ll view plaintiff’s evidence favorably. This approach risks unsuccessful rebuttal of the defense, thus ending the argument on a note unfavorable to plaintiff. It’s better to offer rebuttal arguments early in plaintiff’s closing so that, even if the rebuttal is weak, the remainder of your closing argument concentrates on what’s favorable to plaintiff; the favorable aspects may overshadow the unfavorable in the minds of the jurors.

Learn more about the practical and legal aspects of preparing and presenting closing arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. Get sample language to review as you prepare your own closing argument in chapter 5. And get advice from nationally recognized trial attorneys in CEB’s program Persuasive Opening Statements & Closing Arguments.

Other CEBblog™ posts on closing arguments:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Don’t Do This on Cross Examination

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cross examining a witness

Many attorneys work through their nervousness by beginning their cross examination with taking the witness step by step through previous direct examination testimony. Then they turn to the hard job of true cross-examination. Here’s why you shouldn’t do this.

The jury will be more likely to believe (and remember) statements they hear two, three, or four times. Don’t give the witness the chance to give direct testimony twice to the jury by starting your cross with it. You’ll be helping your opponent.

But there are exceptions to this general rule. You may need to start with the direct examination testimony if the witness:

  • Has a bad memory. If the witness has a terrible memory and is likely to vary from prior testimony, you should go over previous material to test the witness’s memory and expose narrative shortcomings.
  • Lied on direct. If the witness has set him or herself up for impeachment by lying in direct examination, you may want to pin down the testimony, and get it repeated, before showing it to be false. This is the safest approach if the witness has testified from notes or some written records that should guarantee that the perjured testimony will be repeated again.
  • Is repeating counsel’s words. If a witness has been force-fed lines by opposing counsel and repeats them in rote fashion, taking the witness through the testimony again on direct examination could emphasize the memorized quality of the testimony to the jury.

Unless one of these exceptions applies, it’s always best to begin your cross examination strong—it’s the time to go for the jugular.

Get expert guidance on crafting your cross in CEB’s Effective Direct and Cross-Examination, chap 5 and in CEB’s program Evidence: Tips for Effective Direct and Cross Examination.

Other CEBblog™ posts on cross examination:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

List of Trial Objections

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Before heading into trial, review this list of trial objections. And keep it handy during trial.

Objections to Competency of Witness

  • Unable to express and be understood (Evid C §701)
  • Unable to understand duty to tell truth (Evid C §701)
  • Judge at this trial (Evid C §703)
  • Juror at this trial (Evid C §704)
  • Without personal knowledge (Evid C §702)
  • Officer not in distinctive uniform when arrest made (Veh C §40804)

Objections to the Form of Question (Evid C §765, unless otherwise indicated)

  • Ambiguous, confusing, unintelligible
  • Argumentative
  • Already asked and answered
  • Assumes fact in dispute or not in evidence
  • Compound
  • Leading (Evid C §767)
  • Misquotes witness
  • Calls for narrative answer
  • Calls for speculation, e.g., not in witness’s personal knowledge (Evid C §§702, 801)
  • Too general

Objections to Foundation of Offered Evidence

  • Lacks authentication
  • Inadmissible secondary evidence (see Evid C §§1520-1567)
  • Corpus delicti not proven
  • Expert:
    • Not qualified (Evid C §720(a))
    • Basing opinion on improper matter (Evid C §801)
  • Foundation insufficient (Evid C §§403, 405)
  • Illegally obtained (US Const amends IV, XIV; Cal Const art 1, §13)

Objections to Substance of Offered Evidence

  • Altered document (Evid C §1402)
  • Communication made during mediation process (Evid C §§1115-1128)
  • Cross-examination exceeds scope (Evid C §§761, 773)
  • Excludable in court’s discretion (Evid C §352)
  • Expert:
    • Basing opinion on improper matter (Evid C §801)
    • Testifying on improper matter (Evid C §801)
  • Expression of sympathy or benevolence (Evid C §1160)
  • Hearsay (Evid C §1200)
  • Immigration status (Evid C §§351.2-351.3)
  • Improper impeachment (Evid C §§780, 785)
  • Improper rehabilitation (Evid C §§780, 785)
  • Irrelevant (Evid C §§210, 350-351)
  • Opinion inadmissible (Evid C §§800, 802-803)
  • Regarding liability insurance (Evid C §1155)
  • Prior inconsistent statement of excused witness (Evid C §770)
  • Privileged (see Privilege and Related Objections, below)
  • Recollection refreshed by unproduced writing (Evid C §771(a))
  • Settlement negotiations inadmissible (Evid C §§1152-1154)
  • Subsequent safety measures inadmissible (Evid C §1151)
  • Unduly confusing or time-consuming (Evid C §352)
  • Unduly prejudicial or inflammatory (Evid C §352)
  • Violates parol evidence rule (CCP §1856; Com C §2201)

Privilege and Related Objections

  • Self-incrimination (Evid C §940)
  • Attorney-client privilege (Evid C §§950-954)
  • Marital privileges (Evid C §§970-980)
  • Physician-patient privilege (Evid C §992)
  • Psychotherapist-patient privilege (Evid C §§1012, 1024 (dangerous patient exception))
  • Clergy-penitent privilege (Evid C §§1030-1034)
  • Sexual assault victim-counselor privilege (Evid C §1035.4)
  • Domestic violence victim-counselor privilege (Evid C §1037.2)
  • Official informer (Evid C §1042)
  • Political vote (Evid C §1050)
  • Trade secret (Evid C §1060)
  • Reporter’s unpublished information (Evid C §1070)
  • Attorney work product (CCP §§2018.010-2018.080)

Objections to Conduct of Counsel

  • Bringing inadmissible matter before jury
  • Asking insinuating and improper questions
  • Concealing or suppressing evidence
  • Making impermissible references to insurance
  • Making derogatory remarks to counsel, party, or witness
  • Communicating with juror
  • Misstating law

Objections to Conduct of Judge (Canon 3 of the California Code of Judicial Ethics)

  • Commenting on evidence
  • Examining witness to convey opinion of witness’s credibility
  • Disparaging counsel, party, or witness
  • Coercing compliance with personal preferences
  • Interfering with production of proof

Objections to Conduct of Jury (see CCP §§232-234, 611, 613, 1209)

  • Concealing relevant matters during voir dire
  • Receiving or disseminating evidence out of court, including via all forms of electronic and wireless communication
  • Inattentiveness during trial

All objections are not created equal. Many objections that focus on the defects of the question (compound question, vague, unintelligible, and ambiguous) should be used sparingly. Generally, if this type of objection is sustained, it will prompt superior follow-up questions and only assist the examiner in proving his or her point. Focus on objections that seek to exclude the answers to questions (foundation, hearsay, settlement, attorney-client privilege, and improper expert opinion) when the potential answers could damage your case.

Get details on each of these objections in CEB’s California Trial Objections. And make sure to bring CEB’s annotated Evidence Code, Trial Attorney’s Evidence Code Notebook, to trial.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.


What to Do a Month Before Trial

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You’re 30 days from your trial date. Maybe it’s been a while since you’ve gotten this close, or maybe it’s your first time. Don’t worry—here’s a handy chart setting out what you need to do.

40 to 20 Days Before Trial to Trial Date (TD)
Make sure discovery is complete or obtain extension (CCP §§2024.020(a), 2024.040(b)) TD minus 30
Supplement expert disclosure (CCP §2034.280) TD minus 30, or exchange date plus 20
Move to compel discovery (CCP §2024.020(a)) TD minus 36 if personally served
Prepare for mandatory settlement conference
Prepare trial brief
Prepare motions in limine
Meet with witnesses and prepare for witness testimony
Prepare jury instructions
Prepare questions for jury voir dire
Prepare opening statement
Prepare closing argument
Deposit jury fees (CCP §631) TD minus 25, 365 days after filing, or on/before mandatory settlement conference
Serve notice by mail on parties to attend trial with documents (CCP §§1013, 1987(b)-(c)) TD minus 25 by mail
Serve subpoena on witnesses for trial with consumer records (CCP §1985.3) TD minus 25 if by mail
Move to compel discovery re expert witnesses (CCP §2024.030) TD minus 30 if by mail
Serve notice of trial date (CCP §594) TD minus 20 if by mail
Serve notice on parties to attend trial (CCP §1987) TD minus 15 if by mail

You may want to add a couple of columns to this chart to write in the exact due date for each item and the date on which it was done. This will help keep you organized.

For details on each of these steps, check out CEB’s Preparing for Trial (Action Guide) and California Trial Practice: Civil Procedure During Trial. These titles are part of CEB’s OnLAW Litigation Library.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

How to Control an Expert Witness

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As with all witnesses, you must be able to control an expert witness during cross-examination. But many experts with experience in testifying treat cross-examiners like presidential candidates deal with the press: they ignore the question asked and answer the question they prefer. Here’s how to keep experts under your control.

If you’ve got an evasive expert, start by getting the court on your side. Make sure the court sees what’s going on by, if necessary, repeating the question until the witness’s evasion is obvious, then by asking the court to direct the witness to answer.

Another way to call attention to the witness’s evasion is asking:

Q. Did you understand my last question?

Q. Are you willing to answer it?

Remember that the objection that an answer is nonresponsive is designed for the examiner when facing an evasive witness. And Evidence Code §766 requires a trial judge to strike a nonresponsive answer if a party so moves.

If you know in advance that a witness will be difficult to pin down, like an expert who was slippery at deposition, consider making a “bargain” with the expert at the outset of cross-examination:

Q. Ms. Jones, you have been hired by my opponents to help them in their case, haven’t you?

A. I have been hired to render my expert opinion.

Q. In this connection, you have spent over 15 hours working with my opponent, haven’t you?

A. That’s correct.

Q. And you have been paid over $7000?

A. Approximately.

Q. I haven’t had the chance to talk to you informally about the facts of this case, have I?

A. No, you haven’t.

Q. I want to ask some focused questions, and I would like to get your agreement to a procedure that I hope will make certain things clear to the jury. After I ask you a question, I would like you to answer “yes,” “no,” or “I can’t answer that question yes or no.” Do you understand what I am asking?

A. Yes I do.

Q. Can you keep that bargain with me?

A. Yes, I think I can.

If the trial judge won’t let you keep an expert on such a short leash, you should at least be able to get agreement (or direction from the court) that the witness will first answer “yes” or “no,” and then give any explanation necessary to clarify the answer.

For more advice on how to examine an expert witness, turn to CEB’s Effective Direct and Cross-Examination, chap 7. Also check out Jefferson’s California Evidence Benchbook, chap 3 and California Expert Witness Guide, chap 15.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 Questions to Answer Before Using Opinion Character Evidence

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There are situations in which you may want to introduce opinion character evidence at trial. But before you use a character witness in a civil case, ask yourself the following questions.

  1. Why you are using the evidence? The reason you’re using character evidence will dictate whether and how it should be used. Are you using it to prove conduct? To prove character when character itself is in issue? To attack or support a witness’s credibility? See Evid C §§780, 785–787, 1100. Evidence of a person’s character is inadmissible if offered in a civil action to prove that the person acted in conformity with that character except if offered to prove a relevant fact or to prove character when it’s the ultimate fact in dispute.
  2. Is it admissible? Research the statutes and case law that support, or arguably support, admission of the opinion character evidence. Note that a witness’s good character may not be shown in a civil case if it hasn’t been previously attacked. Evid C §790.
  3. Could it backfire? Consider the ramifications of using the evidence substantively or to attack or to support credibility. For example, does the evidence open the door to negative testimony about your client or one of your witnesses?
  4. Would the witness who’s character is at issue have to testify? Evaluate whether the witness for or against whom you wish to use character evidence must testify for the evidence to be admissible.
  5. Should you wait for cross? Choose whether to bring out the evidence through cross-examination or through direct examination of your own witness.
  6. Do you know the basis for the opinion? Review the information on which the character witness will base his or her opinion. This goes back to question #3—could this backfire?
  7. Does the character witness know the whole story? Ascertain what other information may be known to opposing counsel, whether to tell the character witness about it, and whether that new information changes the character witness’s opinion.

As with reputation evidence, the character witness must be shown to have enough information on which to base an opinion. Evid C §800. See People v Ogg (1968) 258 CA2d 841, 846 (lay witness’s opinion must be based on own perception).

For guidance on admitting and objecting to character opinion evidence in both civil and criminal cases, turn to CEB’s Effective Introduction of Evidence in California, chap 14 and Jefferson’s California Evidence Benchbook, chap 35.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

How to Rehab Your Witness

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What can you do if your witness’s truthfulness has been challenged? Use evidence of the witness’s prior consistent statement to rehabilitate your witness. Here’s how it’s done.

To admit evidence of a prior consistent statement of a testifying witness, you’ll need to satisfy the following requirements:

If rehabbing after the witness’s prior inconsistent statement has been admitted in evidence (Evid C §§791(a), 1236):

  • The prior consistent statement must have been made before the alleged inconsistent statement was made (Evid C §791(b)); and
  • If the prior consistent statement is a writing, it must be authenticated (Evid C §1401).

If rehabbing after an express or implied charge that the witness’s testimony is the result of fabrication, bias, or improper motive (Evid C §§791(b), 1236):

  • The prior consistent statement must have been made before these circumstances are alleged to have arisen (Evid C §791(b)); and
  • If the prior consistent statement is a writing, it must be authenticated (Evid C §1401).

Prior consistent statements may be introduced either by (1) asking the witness about his or her own prior consistent statement on redirect examination, or (2) introducing the testimony of a witness to the prior consistent statement.

It’s usually more persuasive to the trier of fact if you go with the second route, because the credibility of the witness whose testimony you’re trying to rehabilitate has been put in issue.

When a prior consistent statement is introduced on direct examination of someone who was a witness to the prior statement, you’ll want that witness to testify to the following matters:

  • Identify his or herself and the witness being rehabilitated;
  • Tell when the statement was made;
  • Describe where the statement was made;
  • Explain the nature of the conversation; and
  • Report the prior consistent statement.

For example, ask the witness

Q: Are you acquainted with Mr. Witness?

Q: What is the nature of your relationship with Mr. Witness?

Q: I am showing you a document marked Exhibit A. Have you ever discussed the drafting of this document with Mr. Witness?

A: Yes.

Q: When was the first time you spoke with him on this subject?

A: On October 4, 2018.

Q: How did the topic come up in your conversation?

A: I asked him how negotiations on the Widget deal were coming.

Q: What did he say?

A: He said that he had signed a contract with Mr. Widget just the day before.

For everything you need to know about using prior consistent statements at trial, turn to CEB’s Effective Introduction of Evidence in California, chap 40.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Is there Any Marital Privilege Left After Divorce?

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As Joseph DeAngelo (the “East Area Rapist”) may soon find out, a divorced spouse can spill a lot of beans. He was separated from his wife for years, but she’s just made divorce official and that’s a boon for the prosecution in his upcoming trial. But is she still limited in what she can say?

There are two marital privileges:

  1. the privilege not to testify against a spouse and not be called as a witness when the spouse is a party; and
  2. the privilege for confidential marital communications.

Neither of these privileges applies in a proceeding brought by or on behalf of one spouse against the other spouse, i.e., a marital dissolution action. Evid C §§972, 984.

The first privilege explicitly applies only during the marriage (Evid C §970):

…a married person has a privilege not to testify against his [or her] spouse in any proceeding.

After divorce, the privilege not to testify goes away.

But the other privilege survives divorce: Under the marital privilege for nondisclosure of interspousal marital communications (Evid C §980),

a spouse…, whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses.

This privilege applies to almost all communications between spouses as long as the communications were meant to be confidential. See People v Bogle (1995) 41 CA4th 770.

Interestingly, this privilege remains even if the disclosure was accidental or unauthorized. An eavesdropper may not testify and disclose an overheard communication if a spouse claims the privilege. Similarly, a third person who, without permission, opens a letter from one spouse to the other can’t testify to its contents if the marital communication privilege is claimed.

The important element for the privilege is that the spouses intend the communication to be confidential, as shown by the circumstances in which it is made. See, e.g., People v Bryant (2014) 60 C4th 335, 419.

For the East Area Rapist trial, this means that his former wife can’t testify as to their confidential communications, but she can be required to testify about her observations during the marriage. And she was well aware of the difference divorce would make, as she’s a California lawyer.

For everything you need to know about marital privileges, turn to CEB’s Jefferson’s California Evidence Benchbook, chap 38 and California Trial Objections, chaps 40-42.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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