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:

• Don’t Do This on Cross Examination
• 3 Questions to Ask Every Expert Witness at Deposition
• Before You Cross-Examine, Write This Down

© 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.

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:

• How to Cross-Examine on Reputation
• 3 Times Not to Ask Leading Questions on Cross
• Expert Tip: Use Jury Instructions in Your Opening and Closing

© 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.

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:

• Introducing Evidence? Make an Offer of Proof!
• How to Put Partial Evidence in Complete Context
• 4 Steps to Deciding How and When to Present Evidence

© 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.

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:

• Standing by Your (Wo)Man
• That’s Privileged! Claiming Privilege in a Deposition
• List of Trial Objections

© 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.

When you need another expert to support your client’s case or there’s a change in the general substance of a  previously designated expert, you’ll need to move to augment or amend your expert witness declaration.

The requirements for the moving party’s declaration, the court’s findings, and the additional procedure of lodging expert witness information in court are as follows:

Declaration

The motion to augment or amend must be accompanied by a declaration, stating facts showing:

• A reasonable and good faith attempt at an informal resolution of each issue presented by the motion; and
• That the motion to augment or amend was made promptly after deciding to call the expert witness or to offer the different or additional testimony;

Or

• Copies of the proposed expert witness information on the expert or the testimony required by CCP §2034.260(c) were thereafter served promptly on all other parties; and
• The moving party wouldn’t in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony;

Or

• Failure to determine to call that expert witness, or to offer that expert’s different or additional testimony, was the result of mistake, inadvertence, surprise, or excusable neglect.

Findings

In addition to finding that the showing made in the moving party’s declaration on the above points is sufficient, the court must:

• Take into account the extent to which the opposing party relied on the moving party’s original list of expert witnesses; and
• Determine that the opposing party won’t be prejudiced in maintaining an action or defense on the merits if the motion is granted.

Lodging Expert Witness Information in Court

Although not expressly required by CCP §§2034.610–2034.630, it’s better practice to lodge original documents with the court or, if lodging deposition transcripts, certified copies of the transcript. See CCP §2025.480(h).

The moving party should arrange for the following documents to be lodged with the court “when their contents become relevant to an issue” in the action (CCP §2034.290(c)):

• The demand for exchange of expert witness information; and
• All expert witness lists and declarations exchanged in response to it.

All materials physically “lodged” with the court must be accompanied by an addressed envelope with sufficient postage for mailing the material. Material lodged electronically must clearly specify the email address to which a notice of deletion may be sent.

Get guidance on all aspects discovering the identify of experts in CEB’s California Expert Witness Guide, chap 10.

Other CEBblog posts you may find useful:

• 4 Things to Know About Exchanging Expert Witness Information
• How to Control an Expert Witness
• 3 Questions to Ask Every Expert Witness at Deposition

© 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.

The permissible scope of counsel’s closing arguments before a jury is broad, but there are limits. Here are 4 things that tread into improper territory.

1. Making a Golden Rule argument. The so-called “Golden Rule argument” to a jury—that the jury should place itself in the plaintiff’s situation and award what it would “charge” to undergo an equivalent disability—is improper. You make an impermissible “Golden Rule” argument if you urge the jurors to put themselves in your client’s position or to view the case from your client’s personal perspective. See Cassim v Allstate Ins. Co. (2004) 33 C4th 780, 797. And in the federal courts, even an indirect “Golden Rule” argument by plaintiff’s counsel is improper, such as saying: “[I]t’s improper for us to say ‘Put yourself in the plaintiff’s shoes.'” Woods v Burlington Northern R.R. Co. (11th Cir 1985) 768 F2d 1287, 1292, disapproved on other grounds in Burlington Northern R.R. Co. v Woods (1987) 480 US 1, 107 S Ct 967.
2. Addressing jurors by name. It’s improper to address a juror by name during an opening statement or closing argument. However, doing so isn’t always prejudicial if the statement or argument involves no special appeal to the juror on the merits of the case because of the juror’s sex, occupation, race, or other personal factors. People v Wein (1958) 50 C2d 383, overruled on other grounds in People v Daniels (1969) 71 C2d 1119, 1140.
3. Quoting individual jurors in an argument to the entire jury. Singling out what one juror said during voir dire is improper. However, it’s not necessarily prejudicial in a particular case. People v Freeman (1994) 8 C4th 450, 517. In People v Riggs (2008) 44 C4th 248, 325, the court held that it was improper for the prosecutor to show a chart with the jurors’ handwritten responses to the jury questionnaire on the subject of the death penalty.
4. Appealing to jurors as group members. Appeals to jurors as members of larger groups are also improper. For example, in a condemnation case, it was improper for government counsel to urge jurors to consider the case from their own personal perspective as taxpayers (“I submit that if you are going to spend your own money, a hundred thousand dollars….”). People ex rel Dep’t of Public Works v Graziandio (1964) 231 CA2d 525, 533.

Learn more about what’s permissible in closing arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chap 3.  And get expert advice 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 on closing arguments:

• 3 Tips for Plaintiff’s Closing Argument
• 5 Tips for Preparing Defense Closing Argument
• Should You Save Something for Your Closing?

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As you work on your questions to ask the jurors during voir dire, consider these six sources for ideas.

1. Sample questions in the rules. Standards 3.25 (civil) and 4.30 (criminal) of the Standards of Judicial Administration (part of the California Rules of Court) spell out areas of inquiry that the trial judge should include in examination of prospective jurors in state civil and criminal cases. They include special questions for personal injury and wrongful death cases.

2. Weak or controversial points in your case. For example, you may want to ask about self-defense, contributory negligence, and punitive damages if they are relevant to your case. These subjects should be reviewed early with the jury.

3. Sensitive areas of possible prejudice. Don’t shy away from sensitive topics. You should ask the jury questions relating to, for example, race, prior criminal record, repulsive facts, or other potentially sensitive issues that will come up in the case.

4. Expert issues. Ask the jurors about the use of experts in general and their use at trial.

5. Professions that are loved or hated. If you expect there will be testimony by members of a profession that’s viewed favorably or unfavorably by many people, e.g., police officer, attorney, surgeon, stockbroker, ask the jurors about their views on the profession.

6. Names at issue. Name the organizations and people whose credibility or liability may be at issue. Ask jurors about their familiarity with and thoughts about those organizations and persons.

Keep in mind that you definitely don’t want to anger the jury pool by boring or annoying them. You should ask questions of the entire panel, and then zero in on particular potential jurors with follow-up questions. Don’t embarrass anyone or pick on any particular person.

Once you’ve outlined your questions, organize them and arrange them in order of importance. You’ll want to ask some questions of every juror and repeat other questions many times with different jurors.

Get more of this expert guidance on examination of jurors in CEB’s Effective Direct and Cross-Examination, chap 10. And check out CEB’s program Tips to Implement in Your Next Set of Jury Voir Dire Questions, available On Demand.

Other CEBblog posts on voir dire:

• What You Can’t Ask a Juror During Voir Dire
• 7 Grounds for Objecting During Voir Dire
• Voir Dire: Your First Chance to Make a Good Impression

© 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.

There are several types of statements that, although sought to be admitted in evidence for their underlying truth, aren’t considered hearsay. This means you can get them into evidence and no hearsay exception need apply.

Here are the most noteworthy of the types of statements that aren’t considered hearsay:

Contemporaneous translation. In Correa v Superior Court (2002) 27 C4th 444, 457, the California Supreme Court held that the contemporaneous translation into English of a statement made by a witness or a victim of a crime isn’t hearsay. A hearsay exception isn’t required for its admission in evidence if the translated statement can be fairly attributed to the witness or victim under the circumstances of the case.

In Correa, circumstances indicating that the translated statements could fairly be attributed to the declarants included the following (27 C4th at 466):

• The translators apparently weren’t previously acquainted with the investigating officers, the declarants, or the defendant;
• They didn’t appear to have any difficulties in communicating with the declarants;
• Other evidence corroborated the accuracy of the facts asserted in their translation; and
• The translators themselves testified at the hearing about their neutrality, their language skills, and the circumstances of the translation.

Computer output. California courts have generally regarded computer output as hearsay. It’s admissible only if it fits within an exception to the hearsay rule, notably the business records exception (Evid C §1271) or the official records exception (Evid C §1280). See People v Martinez (2000) 22 C4th 106, 126 (official record); Aguimatang v California State Lottery (1991) 234 CA3d 769, 797 (business record).

However, information that’s generated by the computer itself isn’t hearsay, “because it’s not a statement by a person.” People v Hawkins (2002) 98 CA4th 1428, 1449. See People v Nazary (2010) 191 CA4th 727, 753 (although issue of whether evidence was offered for truth was technically waived, court agreed with Hawkins analysis in finding that printed portions of receipts from pay island cashier machines, including date, time, and totals, were properly admitted), disapproved on other grounds in People v Vidana (2016) 1 C5th 632, 648 n16.

In People v Rodriguez (2017) 16 CA5th 355, 375, the court held that a computer-generated report of GPS data that was generated by defendant’s ankle monitor didn’t constitute hearsay because it didn’t consist of statements of person. Similarly, the California Supreme Court has held that data recorded by a red-light traffic camera isn’t hearsay because it’s computer-generated and no statement was made by a person as defined by the Evidence Code. People v Goldsmith (2014) 59 C4th 258, 274. See Evid C §§175, 225.

Data in the public eye. In Ampex Corp. v Cargle (2005) 128 CA4th 1569, 1573 n2, computer printouts from a website and a message board were offered to show that they existed in the public eye, not for the truth of the matter asserted and, thus, were not hearsay statements.

For more on what is and isn’t hearsay, turn to CEB’s Jefferson’s California Evidence Benchbook, chap 1 and Effective Introduction of Evidence in California, chap 35.

Other CEBblog posts on hearsay issues:

• Ever Heard of Implied Hearsay?
• Revisiting the Dying Declaration Exception
• Can Opinion Come In Under the Business-Records Exception?

© 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.

As a trial attorney, never forget your role as director of the courtroom play. Consider these staging decisions when it comes to calling witnesses.

1. Early in the trial, call a witness who can authenticate an important exhibit. The exhibit could be a chart, map, diagram, photograph, or other visual aid. Leave the exhibit visible during the rest of the trial and use it with each witness.
2. Early in the trial, call any witness you want present to observe the rest of the trial. This applies, for example, to a family member, or a knowledgeable participant, if the witness would otherwise be excluded before testifying.
3. Intersperse boring witnesses with interesting ones. Keep the jury alert and interested by mixing it up.
4. Choose when to have your stipulations and judicial notice orders read into the record. Choose a time that logically makes sense and minimizes boredom. Stipulations may be written agreements filed with the clerk or oral recitations read into the record. See CCP §283(1). Generally, counsel reads the stipulation to the jury, and the judge instructs the jury that it has the effect of conclusive proof. See CACI 106, 5002. Some judges prefer to read stipulations to the jury themselves.
5. Slow down or speed up your examination of a witness. You may want to end the day or begin the next morning with the examination of a particular witness. This decision may require you to alter your pace of examination.
6. Think about court recesses. Consider what testimony you want the jury to hear before the lunch break or end-of-day recess. The last thing they hear is more likely to stick with them.
7. Key the jury to your scheduling plans. For example, let the jury know when the end of the day is coming, with comments such as, “One last area I would like to ask you about today, Mr. Jones, …” or “Our final witness this afternoon will be Mr. Smith.”
8. Conclude questions abruptly. When used occasionally, ending your direct examination of a witness unexpectedly can be an effective tactic. When you tender a witness before your opponent is expecting to cross-examine, you may catch your opponent unprepared.

For more on setting up your order for presenting proof and witnesses, turn to CEB’s Effective Introduction of Evidence in California, chap 5.

Other CEBblog posts you may find interesting:

• Order Your Witnesses for Impact
• Don’t Bore the Jury!
• Telling the Jury a Compelling Story

© 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.

The general rule is that you need an expert witness to testify when the subject is “sufficiently beyond common experience that the opinion of that expert would assist the trier of fact.” Evid C §801(a). When it comes to a person’s sanity, you don’t always need an expert.

Under Evid C §870, there are three categories in which a lay witness may testify on the sanity of a person:

1. Testimony of an intimate acquaintance. Under this category, a witness may testify about his or her opinion of the sanity of the person whose sanity is in issue. Evid C §870(a). A trial judge must determine the preliminary fact of whether the proffered witness comes within the category of an intimate acquaintance. The justification for this rule of evidence is that an intimate acquaintance presumably will have had sufficient observation of the words and conduct of the person whose sanity is in question to express a meaningful opinion about that person’s sanity. By contrast, a casual acquaintance can’t testify to an opinion on sanity, because such an acquaintance’s observations are too limited to serve as an adequate basis for such an opinion.
2. Testimony of a subscribing witness. A subscribing witness to a will may, for example, have been a total stranger to the testator, but the witness is permitted to testify about his or her opinion of the testator’s sanity. Evid C §870(b). The subscribing witness’s opinion, however, is limited to the person’s sanity as of the time the writing was signed.
3. Testimony of a lay witness on sanity who qualifies under Evid C §800. Section 800 sets out the rule on when a lay person may give opinion testimony, which includes, but is not limited to, an opinion that is:
   • Rationally based on the perception of the witness;  and
   • Helpful to a clear understanding of his or her testimony.

How can a lay witness who isn’t an “intimate acquaintance” qualify under §800 to testify to an opinion on sanity? It’s conceivable that an individual might not be an intimate acquaintance but still might have had enough contacts with the person whose sanity is in issue to be able to testify to that person’s words and actions, and that opinion might be helpful to a clear understanding of his or her testimony.

Keep in mind that Evid C §870 deals solely with the admissibility of lay opinion testimony about the sanity of a person. It doesn’t prohibit a witness’s testimony about his or her observations of the words and conduct of a person, from which the trier of fact may draw inferences about the sanity of that person. See Comment to Evid C §870.

When you need to determine whether to get opinion testimony from an expert or a lay witness, turn to CEB’s Jefferson’s California Evidence Benchbook, chap 30.

Other articles you may find useful:

• 7 Questions to Answer Before Using Opinion Character Evidence
• 4 Ways to Attack Expert Testimony
• Do You Need an Expert Witness, and If So, What Type?

© 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.