3 - Witnesses

Question 1

Who is competent as a witness? What about cases that turn on state law? FRE?

Answer 1

Every person is presumed to be competent to be a witness, except as otherwise provided in the Federal Rules. Common-law prohibitions on a witness’s ability to testify due to a lack of religious belief or conviction of a crime are inapplicable in proceedings governed by the Rules. Questions of mental competence go to weight rather than admissibility of the testimony.

However, in cases that turn on state law, such as diversity cases, witness competence is determined by state law. Fed. R. Evid. 601.

Question 2

Must a non-expert witness have personal knowledge of a matter in order to testify about it? Must one’s personal knowledge be established by one’s own testimony? FRE?

Answer 2

No, No; A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may, but need not be, established by the witness’s own testimony. Fed. R. Evid. 602.

Question 3

Can the judge be a witness? FRE?

Answer 3

A judge is absolutely barred from testifying as a witness in a trial over which she is presiding. Fed. R. Evid. 605.

Question 4

When can a juror testify at trial? FRE?

Answer 4

A juror may not testify as a witness at trial in front of the jury in which he is sitting. If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury. However, a juror may be called to testify outside the presence of the other jurors as to matters that occur during the trial, such the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing case with family members). Fed. R. Evid. 606(a).

Question 5

When can a juror testify after trial? To what? (3) FRE?

Answer 5

During an inquiry into the validity of a verdict, a juror generally may not testify as to any matter or statement that occurred during the course of the jury’s deliberations (e.g., refusal to apply the court’s instructions) or the effect of anything upon that juror’s, or any other juror’s, mind or emotions that influenced the juror’s vote (e.g., the intoxication of a juror). However, a juror may testify as to whether:
i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the triai and the defendant’s guilt);
ii) Improper outside influence was brought to bear on a juror (e.g., a bailiff’s statements to the jury as to the defendant’s past criminal record that was not introduced into evidence); and
iii) A mistake was made in entering the verdict onto the verdict form.
Fed. R. Evid. 606(b).

Question 6

Can a child be a witness? FRE?

Answer 6

No FRE: Competence of a child depends on his intelligence, ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth. Wheeler v. United States, 159 U.S. 523, 524, 526 (1895) (finding a five-year-old child competent to testify at a capital murder trial). A witness who is so young that he is unable to understand the requirement to tell the truth would be disqualified. There is, however, no specific age at which a person becomes competent. The decision with regard to competency is one for the court.

Question 7

What are dead man’s statutes? Civil or criminal?

Answer 7

At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a deceased person whose estate was party to the suit and the testimony was adverse to the decedent’s estate, unless there was a waiver. Dead Man Statutes do not apply in criminal cases.

Question 8

Do the Federal Rules have dead man’s statutes? But what?

Answer 8

The Federal Rules do not include such a restriction, but most jurisdictions have adopted such “Dead Man Statutes,” which may be applicable in federal cases when state law applies (i.e., diversity cases).

Question 9

What is the rationale of a Dead Man Statute? So what do protected parties generally include?

Answer 9

The rationale of a Dead Man Statute is to protect a decedent’s estate from parties with a financial interest in the estate. Therefore, protected parties generally include an heir, legatee, devisee, executor, or administrator of an estate.

Question 10

Who can be disqualified as a witness under a Dead Man Statute? (2)

Answer 10

Any person directly affected financially by the outcome of the case may be disqualified as a witness under a Dead Man Statute. A predecessor in interest to the party may be disqualified in order to prevent circumvention of the statute by transference of property to a relative or friend.

Question 11

Who can be also be an interested person under a Dead Man Statute?

Answer 11

A personal representative of the decedent or a successor in interest may also be
protected under a Dead Man Statute as an interested person.

Question 12

How can an interested person or protected party waive the protection afforded by a Dead Man Statute? (2)

Answer 12

An interested person or protected party may waive the protection afforded by a Dead Man Statute in several ways, including (i) failing to object to the introduction of testimony by a disqualified witness, or (ii) introducing evidence of a conversation or transaction to which the statute applies.

Question 13

Whom can a party attack the credibility of? FRE?

Answer 13

A party may attack the credibility of (“impeach”) any witness, even a witness the impeaching party called. Fed. R. Evid. 607.

Question 14

What are witnesses generally impeached on? When must impeachment be made?

Answer 14

Witnesses generally are impeached on the grounds of bad character, bias, or incompetence. Impeachment may be made during direct or cross-examination, unless otherwise indicated.

Question 15

As to reputation or opinion evidence, how can the credibility of a witness be attacked? When is evidence of truthful character admissible? FRE?

Answer 15

The credibility of a witness may be attacked by reputation or opinion evidence only as to the witness’s character for truthfulness or untruthfulness. Evidence of the truthful character of the witness is admissible only if the character of the witness has been attacked for truthfulness. Fed. R. Evid. 608(a).

Question 16

When can a witness be asked on cross-examination about specific prior instances of misconduct?

Answer 16

A witness may be asked on cross-examination about specific prior instances of misconduct only if the judge determines that the prior bad acts are probative of untruthfulness and the lawyer has a good faith basis for asking about the conduct.

Question 17

Can prior bad acts be proven by extrinsic evidence? FRE?

Answer 17

Such instances may not be proven by extrinsic evidence. Fed. R. Evid. 608(b). Rule 608 does not define extrinsic evidence, and there is a split of authority regarding the definition.

Question 18

For prior bad acts, who must have committed the acts?

Answer 18

The prior acts may have been committed by the witness himself or another person about whom the witness has testified.

Question 19

May a witness be cross-examined about an arrest? FRE?

Answer 19

Because an arrest for a bad act is not itself a bad act, a witness may not be cross-examined about an arrest. Fed. R. Evid. 608(b).

Question 20

May a witness be impeached with evidence that he has been convicted of a crime? FRE?

Answer 20

A witness may always be impeached with evidence that he has been convicted of a crime, subject to the limitations discussed below. Fed. R. Evid. 609.

Question 21

When may a witness be impeached by evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statements?

Answer 21

Any witness may always be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statements within 10 years of the conviction.

Question 22

When may a witness be impeached by evidence that he has been convicted for crimes not involving fraud or dishonesty that are less than 10 years old? What about in a criminal trial, when the witness is a D or a non-party witness?

Answer 22

Convictions for crimes not involving fraud or dishonesty that are less than 10 years old are admissible only if the crime is a felony (i.e., punishable by death or imprisonment for more than one year). When the witness is a defendant in a criminal trial, the court has discretion to bar impeachment evidence of a felony conviction not involving dishonesty or false statement if the prosecution fails to show that the probative value outweighs the prejudicial effect.

For witnesses other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect (i.e., the Rule 403 standard).

Question 23

When are convictions (or releases from confinement, whichever is later) of more than ten years old admissible? What must a proponent do? FRE?

Answer 23

If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), evidence of the conviction is not admissible, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs Ws prejudicial effect. Such conviction will not be admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Fed. R, Evid. 609(b).

Question 24

What qualifies as a crime involving dishonesty or false statement? Do crimes of violence qualify?

Answer 24

A crime qualifies as one involving dishonesty or false statement only if establishing the elements of the crime requires either proof or admission of an act of dishonesty or false statement, such as perjury, fraud, embezzlement, or false pretense. Crimes of violence, such as murder, assault, or rape, do not qualify as a crime involving dishonesty or false statement even though the perpetrator acted deceitfully in committing the crime of violence.

Question 25

May a conviction be used for impeachment purpose if the witness has been pardoned, received a certificate of rehabilitation (or similar document), or has had the conviction annulled? If so, when? (2) FRE?

Answer 25

A conviction may not be used for impeachment purpose if the witness has been pardoned, received a certificate of rehabilitation (or similar document), or has had the conviction annulled, provided that either (i) the action was based on a finding of innocence or (ii) the witness has not subsequently been convicted of another felony. Fed, R. Evid, 609(c).

Question 26

Is evidence of juvenile adjudications admissible? In a criminal case? (2) FRE?

Answer 26

Evidence of juvenile adjudications is generally not admissible. The court may, however, in a criminal case, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack an adult’s credibility and the court is satisfied that admission of the evidence is necessary for a fair determination of the issue of guilt or innocence in the case. Fed. R. Evid. 609(d).

Question 27

How can evidence of a prior conviction be produced? (2)

Answer 27

Evidence of a prior conviction may be produced by way of an admission by the witness, whether during direct testimony or on cross-examination, as well as by extrinsic evidence (e.g., a record of the conviction). Fed. R. Evid. 609.

Question 28

What about pendency of an appeal for a conviction and admissibility? (2) FRE?

Answer 28

The pendency of an appeal for a conviction will not render evidence of the conviction inadmissible. Evidence of the pendency of the appeal, however, is admissible. Fed. R. Evid. 609(e).

Question 29

What about cross-examination on an unrelated pending criminal charge solely for the purpose of impeaching a D’s credibility?

Answer 29

Cross-examination on an unrelated pending criminal charge solely for the purpose of impeaching a defendant’s credibility is impermissible.

Question 30

Can a criminal defendant’s withdrawn guilty plea be used against her as admissions to those crimes for which she is being tried?

Answer 30

No; A criminal defendant’s withdrawn guilty plea cannot be used against her as admissions to those crimes for which she is being tried.

Question 31

Is a guilty plea to a traffic violation admissible as proof of negligence in a subsequent civil action?

Answer 31

A guilty plea to a traffic violation is not a crime implicating the same due process protections as more serious crimes, and is admissible as proof of negligence in a subsequent civil action, provided the defendant is given an opportunity to explain the plea so that the jury might decide whether to afford it any weight.

Question 32

How can a witness be impeached with a prior inconsistent statement?

Answer 32

A witness may be impeached by showing that the witness has made statements that are inconsistent with some material part of the witness’s present testimony.

Question 33

What about extrinsic evidence and prior inconsistent statements? FRE? How is this different from the common law?

Answer 33

Such impeachment may occur by cross-examination or by use of extrinsic evidence. Extrinsic evidence may be introduced only if the witness is given the opportunity to explain or deny the evidence and the opposing party is given the opportunity to examine the witness about it. Fed. R. Evid. 613(b).

Unlike common law, the Federal Rules do not require that the witness have the opportunity to explain or deny the evidence before introducing a prior inconsistent statement.

Question 34

What about collateral matter and prior inconsistent statements? Is the questioning party bound or not to the witness’ answer?

Answer 34

Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral (i.e., immaterial) matter; the questioning party is bound by the answer the witness gives.

Question 35

Is bias material? How does bias come across?

Answer 35

Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., a reduced sentence), or in the outcome of the case (e.g., receipt of an inheritance), bias is always materia), and a witness may always be impeached on that ground. A foundation may be required to be laid prior to the introduction of extrinsic evidence. The examiner lays a foundation by asking the witness about the facts that form the basis of the alleged bias.

Question 36

May a witness be impeached by showing a deficiency in his testimonial capacities to perceive, recall, or relate information? How?

Answer 36

A witness may be impeached by showing a deficiency in his testimonial capacities to perceive, recall, or relate information. This can be achieved by demonstrating that the witness is physically or mentally impaired, or through evidence of outside interference with the witness’s abilities, such as thunder impeding the ability to hear or darkness impeding the ability to see.

Question 37

Can you impeach a hearsay declarant? FRE?

Answer 37

Yes; 806

When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and if attacked, supported) by any evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to deny or explain any inconsistent statements or conduct, whether such statements or conduct occur before or after the hearsay statement. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. Fed. R. Evid. 806.
Similar impeachment treatment is accorded non-hearsay statements made by a co- conspirator, agent, or authorized spokesperson for a party-opponent.

Question 38

What are the three ways to rehabilitate a witness that has been impeached? FRE?

Answer 38

A witness who has been impeached may be “rehabilitated” by the introduction of rebuttal evidence by either party to support the witness’s credibility. Rehabilitation may be accomplished by:

i) Explanation or clarification on redirect examination;
ii) Reputation or opinion evidence of his character for truthfulness, If the witness’s character was attacked on that ground under Fed. R, Evid. 608(a); or
iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

Fed. R. Evid, 801(d)(1)(B).

Question 39

What about present recollection refreshed? (3) FRE?

Answer 39

A witness whose memory is incomplete is allowed to examine any item or thing (e.g., writing, photograph) in order to “refresh” the witness’s present recollection. The witness may not use the item to testify (e.g., cannot read from a document); the purpose of allowing the witness access to the item is to enable the witness to testify from her refreshed memory.
An adverse party is entitled to inspect the item used to refresh, cross-examine the witness about it, and introduce relevant portions into evidence. The court has discretion, based on the interests of justice, to permit an adverse party to refresh the memory of the witness prior to testifying. Fed. R, Evid. 612.

Question 40

What about past recollection recorded? Can it be received as an exhibit?

Answer 40

A memorandum or record about a matter that a witness once had knowledge of but now has insufficient recollection to testify to may be admissible under a hearsay exception (see § VII.B.5, Recorded Recollection, infra). Although the record may be read to the jury, it is not received as an exhibit until it is offered by an adverse party.

Question 41

What’s the difference between refreshed and recorded recollections?

Answer 41

The item used to refresh a witness’s present recollection is not admitted into evidence, but a document introduced under the past recorded recollection hearsay exception may be.

Question 42

May a lay witness generally testify as to his opinion?

Answer 42

No

Question 43

In what respect is lay testimony admissible? What three things are required? FRE?

Answer 43

with respect to common sense impressions such as appearance, intoxication, speed of a vehicle, or another’s emotions. In order to be admissible, the opinion must be:

i) Rationally based on the perception of the witness; and
ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
iii) The opinion must not be based on scientific, technical, or specialized knowledge. Fed. R. Evid. 701.

Question 44

What must a court determine before an expert witness may testify? (2)

Answer 44

i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and
ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.

Question 45

Once the testimony is determined to be reliable and relevant, an expert witness may testify as to her opinion, provided: ….(4) FRE?

Answer 45

i) The witness is qualified as an expert by knowledge, skill, experience, training, or education;
ii) The testimony is based on sufficient facts or data;
iii) The factual data, principles, and methods used as a basis for the testimony are of the type reasonably relied on by experts in the field, although the data need not be admissible itself; and
iv) The witness applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702

Question 46

What about the expert witness and her degree of certainty in her opinion?

Answer 46

The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.”

Question 47

Can an expert witness testify on an ultimate issue? Exception? Who determines this? FRE?

Answer 47

An expert’s opinion on an ultimate issue in the case (including the defendant’s state of mind) is admissible, except as to whether a criminal defendant had the requisite mental state of any element of the crime charged or of its defense. That determination lies in the province of the trier of fact. Fed. R. Evid. 704.

Question 48

What may an expert opinion be based on? (3) FRE?

Answer 48

The expert’s opinion may be based on (i) personal observation, (ii) facts made known to the expert at trial, or (iii) facts not known personally but supplied to her outside the courtroom and of a type reasonably relied upon by experts in the particular field. Fed. R. Evid. 705.

Question 49

In making facts known to an expert at trial, is use of a hypothetical question required? FRE?

Answer 49

No; In making facts known to the expert at trial, use of a hypothetical question is not required. Fed. R. Evid. 705.

Question 50

Can experts rely on inadmissible facts? FRE?

Answer 50

Facts reasonably relied upon in the given field may be relied upon by the expert even if those facts are inadmissible. If such facts are inadmissible, they are disclosed to the jury only if the court determines the probative value of the facts substantially outweighs the prejudicial effect. Fed. R. Evid. 703.

Question 51

What about expert witnesses and cross-examination? (1) FRE? (1)

Answer 51

An expert may be cross-examined about his qualifications and the basis for his opinion to show that his opinion is not credible, Although the expert need not disclose the facts or data underlying his opinion when testifying on direct examination, he may be required to disclose them on cross-examination. Fed. R. Evid. 705. The expert also may be questioned regarding statements made in a publication that has been established as a reliable authority. A selection from a publication also may be admissible.

Question 52

Can the court appoint an expert witness? Details? (4) FRE?

Answer 52

The court may appoint an expert witness. Such a witness must advise each party of his findings, if any. Each party may depose the witness, call the witness to testily, and cross-examine the witness. Fed. R. Evid. 706.

Question 53

What about interpreters and expert witnesses? FRE?

Answer 53

An interpreter is subject to the rules for expert witnesses. Fed. R. Evid. 604.