3. Witness + Impeachment

Question 1

Witness Issues - Form of Question Objections: Leading

Answer 1

A question is leading when the question suggests the answer. Leading questions are generally not allowed on direct but are allowed in cross-examination.

Question 2

Witness Issues - Form of Question Objections: Call for a Narrative

Answer 2

A question calls for a narrative when the answer would be overbroad.

Question 3

Witness Issues - Form of Question Objections: Compound

Answer 3

A question is compound when it contains multiple questions.

Question 4

Witness Issues - Form of Question Objections: Assumes Facts

Answer 4

A question assumes facts when it introduces facts that have not been admitted into evidence.

Question 5

Witness Issues - Form of Question Objections: Argumentative

Answer 5

A question is argumentative when it is unnecessarily combative.

Question 6

Witness Issues - Form of Response: Non-Responsive

Answer 6

A witness’s answer is non-responsive when it fails to answer the question asked.

Question 7

Witness Issues - Competence

Answer 7

A witness may only testify if they are competent. To be competent, a witness must have personal knowledge of the matter to which they testify, base their testimony on a present recollection of events, be able to communicate directly or through a translator, and swear or affirm that they will tell the truth. [CA] the witness must be able to tell the difference between a truth and a lie.

Question 8

Witness Issues - Impeachment: Bias

Answer 8

Evidence that a witness is biased or has an interest in a particular outcome in the suit tends to show the witness has motive to lie. A party must establish the factual foundation for the alleged bias before questioning the witness regarding his alleged bias.

Question 9

Witness Issues - Impeachment: Proper Inconsistent Statement

Answer 9

A witness may be impeached with a prior inconsistent statement that is materially different from testimony at trial. Extrinsic evidence is admissible only if the witness who made the statement had an opportunity to explain or deny the statement and the proponent is given an opportunity to examine the witness about it.

Question 10

Witness Issues - Impeachment: Conviction of a Crime – FRE

Answer 10

Crime Involving Dishonesty: A court must admit impeachment evidence for any convictions involving dishonesty. However, if the conviction is more than 10 years old, the judge can exclude it if its probative value is substantially outweighed by its prejudicial effect. Felonies Not Involving Dishonesty: A party can impeach with a felony that does not include dishonesty; however, the court may exclude the evidence if (1) the impeached witness is a criminal defendant, and the prosecution has not shown the probative value outweighs the prejudicial effect, or (2) for a non-defendant witness, that the conviction’s probative value is substantially outweighed by its prejudicial effect. The court can also exclude the conviction if it is more than 10 years old if the probative value is substantially outweighed by its prejudicial effect.

Question 11

Witness Issues - Impeachment: Conviction of a Crime – CA

Answer 11

A party may impeach a witness with any felony that involves “moral turpitude,” subject to the court’s balancing of the equities. “Moral turpitude” means lying, violence, extreme recklessness, or sexual misconduct. Crimes not involving moral turpitude are inadmissible for impeachment purposes.

Question 12

Witness Issues - Impeachment: Prior Bad Acts – FRE

Answer 12

A cross-examiner can, in good faith, ask about prior bad acts that involve untruthfulness; however, extrinsic evidence of the prior bad act is not permitted.

Question 13

Witness Issues - Impeachment: Contradiction

Answer 13

Contradictory facts may be used to impeach when the witness testifies regarding a material issue, the testimony regarding a particular fact is significant regarding credibility, or the witness volunteers testimony about a subject about which the opposing party would otherwise be precluded from offering evidence.

Question 14

Witness Issues - Impeachment: Sensory Deficiencies

Answer 14

A witness may be impeached by showing that their sensory abilities or recollection could be so impaired so as to make it doubtful that they could have perceived or had knowledge of the facts to which they are testifying.

Question 15

Witness Issues - Opinion: Lay Opinion

Answer 15

A lay witness may testify to their opinion when the testimony is rationally based on their own perception, would assist the fact finder in understanding the witness’s testimony or assessing an issue of fact, and is not based on scientific, technical, or other specialized knowledge.

Question 16

Witness Issues - Opinion: Expert Opinion

Answer 16

For expert testimony to be admissible, the proffering party must show that the proposed testimony concerns a specialized area about which expert testimony would assist the trier of fact; the witness is a qualified expert; the expert can show a reasonable probability that his opinion is correct; the opinion is properly factually supported; and the opinion is based on reliable principles that have been reliably applied to the facts.

Question 17

Witness Issues - Reliability of Principles and Application – FRE

Answer 17

In federal court, reliability is determined by an analysis of the following factors: whether the principles and application have been published and/or peer-reviewed, the error rate of the principles, whether the results of the principles have been tested and are retestable, and whether the principles have achieved a reasonable level of acceptance in the relevant field.

Question 18

Witness Issues - Reliability of Principles and Application – CA

Answer 18

In CA, an expert’s opinion is considered reliable when it is generally accepted by experts in the field.