Witnesses under California’s Evidence Code

Division 6 of the California Evidence Code concerns witnesses. Chapter 1 deals with competency. Section 700 specifies that every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.

Section 701 provides that a person is disqualified to be a witness if he or she is (1) incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him or (2) incapable of understanding the duty of a witness to tell the truth.

Section 702 states that the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.

Section 703 specifies that, before the judge presiding at the trial of an action may be called to testify in that trial as a witness, he must, in proceedings held out of the presence and hearing of the jury, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

Section 703.5 prohibits any person presiding at any judicial or quasi-judicial proceeding, or any arbitrator or mediator, to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding. The exceptions are any statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings.

Section 704 states that, before a juror sworn and impaneled in the trial of an action may be called to testify before the jury in that trial as a witness, he must, in proceedings conducted by the court out of the presence and hearing of the remaining jurors, inform the parties of the information he has concerning any fact or matter about which he will be called to testify.

Chapter 2 deals with Oath and Confrontation. Section 710 states that every witness before testifying is required to take an oath or make an affirmation or declaration in the form provided by law, except that a child under the age of 10 or a dependent person with a substantial cognitive impairment, in the court’s discretion, may be required only to promise to tell the truth.

Section 711 states that, at the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

Section 712 provides that, at the trial of a criminal action, evidence of the technique used in taking blood samples may be given by a registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist or clinical laboratory bioanalyst, by means of an affidavit.

Article 1 deals with expert witnesses generally. Section 720 states that a person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

Section 721 provides that a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to his or her qualifications, the subject to which his or her expert testimony relates, and the matter upon which his or her opinion is based and the reasons for his or her opinion.

In addition, if a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the specified conditions occur.

Section 722 states that the fact of the appointment of an expert witness by the court may be revealed to the trier of fact. Also, the compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony. Section 723 allows the court, at any time before or during the trial of an action, to limit the number of expert witnesses to be called by any party.

Article 2 deals with the Appointment of Expert Witnesses by Court. Section 730 states that, when it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.

In addition, the court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.

Section 731 says that, in all criminal actions and juvenile court proceedings, the compensation fixed must be a charge against the county in which the action or proceeding is pending and must be paid out of the treasury of that county on order of the court.

Section 732 provides that any expert appointed by the court may be called and examined by the court or by any party to the action. When such a witness is called and examined by the court, the parties have the same right to cross-examine the witness and to object to the questions asked and the evidence adduced.

Section 733 provides that nothing in this article may prevent any party to any action from producing other expert evidence on the same fact or matter but, where other expert witnesses are called by a party to the action, their fees must be paid by the party calling them and only ordinary witness fees shall be taxed as costs in the action.

Chapter 4 deals with Interpreters and Translators. Section 750 states that a person who serves as an interpreter or translator in any action is subject to all the rules of law relating to witnesses. Section 751 requires an interpreter to take an oath that he or she will make a true interpretation to the witness in a language that the witness understands and that he or she will make a true interpretation of the witness’ answers to questions to counsel, court, or jury, in the English language, with his or her best skill and judgment.

Section 752 provides that, when a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom the witness can understand and who can understand the witness must be sworn to interpret for the witness.

Section 753 states that, when the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing.

Section 754 defines the term “individual who is deaf or hard of hearing.” Section 754.5 states that where a valid privilege exists between an individual who is deaf or hard of hearing and another person, that privilege is not waived merely because an interpreter was used to facilitate their communication.

Section 755.5 specifies that, during any medical examination, requested by an insurer or by the defendant, of a person who is a party to a civil action and who does not proficiently speak or understand the English language, conducted for the purpose of determining damages in a civil action, an interpreter must be present to interpret the examination in a language that the person understands.

Section 756 provides that, to the extent required by other state or federal laws, the Judicial Council is required to reimburse courts for court interpreter services provided in civil actions and proceedings to any party who is present in court and who does not proficiently speak or understand the English language for the purpose of interpreting the proceedings in a language the party understands.

Section 757  states that existing laws and policies include the authority to provide an interpreter in a proceeding in which a petitioner requests an order from the superior court to make the findings regarding special immigrant juvenile status pursuant to federal law.

Article 1 provides a number of definitions. The following terms are defined:

• Direct examination
• Cross-examination
• Redirect examination
• Recross-examination
• Leading question

Article 2 concerns the Examination of Witness. Section 765 requires the court to exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment. The court has to take special care for certain witnesses.

Section 766 requires a witness to give responsive answers to questions, and answers that are not responsive must be stricken on motion of any party. Section 767 states that, with certain exceptions, a leading question may not be asked of a witness on direct or redirect examination, and a leading question may be asked of a witness on cross-examination or recross-examination.

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

Section 769 specifies that, in examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.

Section 770 prohibits extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing, unless the witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or the witness has not been excused from giving further testimony in the action.

Section 771 provides that, if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.

Section 772 requires the examination of a witness to proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination. Also, unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins.

Section 773 allows a witness examined by one party to be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs. Also, the cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.

Section 774 prohibits a witness once examined from being reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court’s discretion.

Section 775 states that the court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party.

Section 776 provides that a party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.

Section 777 allows a court to exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses. Section 778 states that, after a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court’s discretion.

Chapter 6 concerns the Credibility of Witnesses. Article 1 deals with credibility generally. Section 780 allows the court or jury to consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing.

Section 782 provides that, in any of the circumstances described, if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness, then a specified procedure must be followed.

Section 782.1 says that the possession of a condom is not admissible as evidence in the prosecution if the offense is related to prostitution. Section 783 states that, in any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, if evidence of sexual conduct of the plaintiff is offered to attack credibility of the plaintiff, then a specified procedure must be followed.

Chapter 6 deals with the Credibility of Witnesses. Article 2 concerns Attacking or Supporting Credibility. Section 785 states that the credibility of a witness may be attacked or supported by any party, including the party calling him. Section 786 provides that evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.

Section 787 states that evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness. Section 788 allows, for attacking the credibility of a witness, for it to be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony, except in certain circumstances.

Section 789 specifies that evidence of one’s religious belief or lack thereof is inadmissible to attack or support the credibility of a witness. Section 790 provides that evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.

Section 791 states that evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after specified instances.

Chapter 7 deals with Hypnosis of Witnesses. Section 795 specifies that the testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events that are the subject of the witness’s testimony, if all of the specified conditions are met.