<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by ab'smom:
What do I do when my ex's lawyer trys to hurt my character as a witness in court? My ex hit me with an"impliment" while I was holding our 6 month old baby. I called police and I have now been subpeonaed to court. He tells me that his lawyer has no choice but to drag my name through the dirt....ADVICE PLEASE!!!I live in California.<HR></BLOCKQUOTE>
My response:
You weren't specific at all concerning what type of "name dragging" your husband could use against you; i.e., what have you done in the past to him, to warrant such fears?
So, because you weren't specific, I can only give you some general rules of evidence, and hope that you can glean something from the following:
Relevant character evidence is admissible when a particular trait of a person's character is itself at issue in the case: "(A)ny otherwise admissible evidence . . . is admissible to prove a person's character or a trait of his character." [Ca Evid § 1100 (emphasis added)]
Thus, relevant character evidence--in the form of an opinion, or evidence of reputation or of specific acts--is admissible when some character trait is an ultimate issue in dispute. [Ca Evid § 1100, Comment]
Evidence of domestic violence and assaultive conduct is admissible in child custody/visitation proceedings . . . because the court's determination of the child's best interests must reflect any history of "abuse" between the parents or by a parent against a child. [Ca Fam § 3011(b)--"substantial independent corroboration" (e.g., police or medical reports) required before court may consider abuse allegations]
Evidence of prior specific conduct by a person may be admissible to prove any relevant fact other than the person's disposition or propensity to act in a particular manner. [Ca Evid § 1101(b)]
Specifically, evidence that a person committed a crime, tort or other act may be relevant to prove some fact such as:
-- motive;
-- opportunity;
-- intent;
-- preparation;
-- plan;
-- knowledge;
-- identity;
-- absence of mistake or accident; and
-- in prosecutions for sex crimes, whether the accused had a good faith belief in the victim's consent to sexual act. [Ca Evid § 1101(b)]
Special rules limit the admissibility of character evidence in actions for sexual harassment and sexual assault:
a) Inadmissible to prove consent or lack of injury: Defendant may not offer character evidence to prove plaintiff's consent or the absence of injury (unless the injury alleged is loss of consortium). However, evidence of plaintiff's prior sexual conduct with the defendant is admissible on these issues. [See Ca Evid § 1106(a)] (Similar rules apply in criminal cases; see Ca Evid § 1103(c).)
"Other-crimes" evidence is inherently prejudicial and should be admitted only where its probative value is clear. Further, uncharged offenses are admissible only if they have substantial probative value. [People v. Ewoldt (1994) 7 Cal.4th 380, 404, 27 Cal.Rptr.2d 646, 660; Brown v. Smith (1997) 55 Cal.App.4th 767, 791, 64 Cal.Rptr.2d 301, 316]
a) Factors considered: Admissibility of other crimes evidence depends on three factors:
· The materiality of the fact sought to be proved or disproved;
· The tendency of the uncharged crime to prove or disprove the material fact; and
· The existence of any rule or policy requiring the exclusion of relevant evidence. [People v. Hayes (1990) 52 Cal.3d 577, 617, 276 Cal.Rptr. 874, 897]
b) Balancing under Ca Evid § 352 required: Additionally, even where Ca Evid § 1101 does not require exclusion of uncharged misconduct (e.g., where the evidence is relevant to prove a fact in issue other than defendant's criminal or tortious disposition), further inquiry under Ca Evid § 352 is required. [Brown v. Smith, supra, 55 Cal.App.4th at 792, 64 Cal.Rptr.2d at 316]
In weighing the probative versus prejudicial value of the evidence under Ca Evid § 352, courts must consider:
· the tendency of the evidence to demonstrate the existence of a common design or plan;
· the extent to which the source of the uncharged evidence is independent of the charged offense evidence; and
· whether the uncharged acts resulted in criminal convictions. [Brown v. Smith, supra, 55 Cal.App.4th at 792, 64 Cal.Rptr.2d at 316]
Evidence of a witness' character for truth or veracity (in the form of opinion or reputation) is admissible to support or attack the credibility of a witness. [Ca Evid §§ 786-790, 1101(c)]
(1) Who may attack or support credibility: The credibility of a witness may be attacked (or supported) by any party, including the party calling the witness. [Ca Evid § 785]
(2) Evidence must be relevant to honesty or veracity: The evidence must have a tendency in reason to prove or disprove the truthfulness of the witness' testimony. Therefore, the only character evidence relevant to a witness' credibility is his or her character for honesty and veracity (or their opposites). [Ca Evid §§ 780(e), 786]
IAAL
------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."
