§ 3 - Witnesses & Credibility Flashcards
sequestration
to separate, kicking out potential witnesses who might listen and then adapt/adopt the prior witness’ testimony. This includes texts, emails, talking about the case and watching stuff about it on TV. governed by 615
Blinka made sure to note that witnesses should always be subpoenaed.
Right to Confrontation
A defendant has a civil right and in criminal law has constitutional right to be there during witness testimony.
“viva voce”
the preferred way a “witnesses” provide “testimony”, ie face to face and under oath
“competency”
who gets to take the stand.
who gets to take the stand?
persons. they must be competent. 601. they must have personal knowledge of the matter. 602. and their testimony must be under under oath. 603.
who is competent?
essentially everyone 601, there’s more or less a presumption of competency. we ask whether the person has “testimonial capacity”
“testimonial capacity”
governed by 601, it identifies the witness’ ability to perceive, to recall, that which is perceived, and the ability to describe and narrate it
Can children be witnesses?
it depends, if there is a question of competency then a voir dire competency hr’g may be requested which allows the cross examiner to ‘leapfrog’ the direct examiner to ensure the child is competent and qualified: essentially determining if they understand the difference between telling a truth and a lie.
can a juror be a witness to their own case? which rule governs this issue? what’s the policy underlaying this idea
no. 606(b) prohibits jurors from being witness to their own case. why? because we want finality in our cases and judges to try to fix things during the trial. we adhere to the legal fiction that jurors perfectly follow and apply the facts to the law.
Grounds for attacking a verdict under 606(b)? What outcome? what sort of things don’t we care about?
when extraneous information enters the jury box. the outcome will not necessarily be certain, the judge can consider the extent to which the information was prejudicial. racial bias raises a constitutional issue and is barred by 606(b)
we don’t care if the jurors are drunk, if they understand the JIs, if they cast their vote w/o caring about the outcome.
Five avenues for impeachment
bias, testimonial capacity, truthful character, prior inconsistent statements, contradiction
can a judge be a witness in a case over which they preside?
no. rule 605
bias impeachment
showing that a witness is not to be believed because they are lying or or honestly mistaken
“non-collateral issues”
a matter relevant to a consequential issue and thus important as proof of some fact apart from the Ws credibility. 401. recall a consequential issue comes from pleadings in civil and charged offense in criminal.
this is the “big garage.” bias, testimonial capacity. this attacks not only witness credibility but also the testimony asserted in support of a consequential fact.
testimonial capacity impeachment
attacking any of the following: (1) capacity to perceive (2) remember (3) narrate (4) be sincere. this is a 601 issue
