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Intimate Acquaintance Testimony For Brain Injury Cases

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The testimony of intimate acquaintances of a victim is a valuable tool in a mental or brain injury cases.  Unlike outward physical injuries, such as a broken bone or a third-degree burn, brain injuries can manifest in ways that are subtle and often cannot easily be demonstrated.  For example, those suffering from a brain injury may experience changes in personality, conduct, and thought process.

These changes are often noticed by lay persons who are very familiar with the injured person, such as family members, close friends, and even coworkers.  Fortunately, you don’t necessarily need to be a trained expert to testify about the mental impact of an injury as California’s Evidence Code permits “intimate acquaintances” to testify regarding the mental condition regardless of whether the person is qualified as an expert witness under the California Evidence Code.  “A witness may state his opinion as to the sanity of a person when: (a) The witness is an intimate acquaintance of the person whose sanity is in question.”  (Cal. Evid. Code §870(a).)

Moreover, despite the language of the statute being couched in terms of “sanity,” such testimony is not limited to the black and white question of whether a person is sane or insane.  “The opinion of nonexpert witnesses may be given on those matters which are too subtle or complex to permit adequate presentation in any other way and this is the basis for intimate acquaintance rule in question.”  (Schomaker v. Provoo (1950) 96 Cal.App.2d 738, 741.)  Thus, although Evidence Code section 870 is couched in terms of sanity, its basis is not limited strictly to the determination of whether a person is sane or insane and can be used to elicit opinions about an injured person’s mental state.

There is no set definition of “intimate acquaintance.” (In re Budan’s Estate, (1909) 156 Cal. 230, 234 (The meaning of the term ‘intimate acquaintance’ has not been clearly defined.”).)  However, the Supreme Court has provided some insight, stating “[t]o be such an [intimate] acquaintance necessarily requires a familiarity with the mental temperament of the person…in question.”  (Ibid.)  And “familiarity is not measured exclusively by … length time” and length of time is merely a non-controlling element of the determination.  (Ibid.)  Indeed, a person who is “closely connected” and has sufficient opportunity to observe the conduct and demeanor of the person in question may be an intimate acquaintance despite only knowing a person for a short period of time.  (Ibid.)  Essentially, the question of whether a witness will qualify as an “intimate acquaintance” is based on the totality of the circumstances.

The ability of an intimate acquaintance to testify about an injured person’s mental state and the impact of the brain injury can be important in a brain injury case.  Often it is the best evidence of issues relating to liability (where, for instance, a changed mental state should have been appreciated), as well as to the existence and extent of brain damage.

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