4. Testimonial Evidence

Question 1

Competency:

Answer 1

To be competent witness, person must have:

♣ 1. PERSONAL KNOWLEDGE: must be based on her own perception
♣ 2. MEMORY: has to be able to remember
♣ 3. COMMUNICATION: must be able to relay her perception; either directly or through an interpreter
♣ 4. SINCERITY: must take an oath or affirm to tell the truth

Witnesses are generally presumed to be competent

Question 2

USE OF DOCS. BY WITNESS DURING TESTIMONY:

Present Recollection Refreshed

Answer 2

♣ Use of document to refresh witness’s memory during testimony
• Witness can’t read aloud from the document but can look at it briefly and continue testifying unassisted

• Document is not read into evidence
o But: opponent may inspect and offer into evidence anything used to refresh the witness memory

Question 3

USE OF DOCS. BY WITNESS DURING TESTIMONY:

Recorded Recollection

Answer 3

Document Witness previously wrote/adopted read to evidence. Requirements:

1. PERSONAL KNOWLEDGE: W once had personal knowledge of facts comprising the recorded recollection
2. WROTE: Document was written/adopted by W
3. FRESH MEMORY: wrote/adopted document when contents were fresh in memory
4. INSUFFICIENT MEMORY: memory is insufficient to testify to contents
5. ACCURATE: Document was accurate at the time it was made

Question 4

Objections to form of Question or Testimony

Answer 4

These objections must be specific and promptly made; otherwise they are waived.

♣ Form of question objections:
• 1. Calls for narrative (non-specific, open-ended)
• 2. Leading (question suggests the answer)
o Improper on direct unless witness is hostile or an adverse party; acceptable on cross-exam
• 3. Assumes facts not in evidence
• 4. Argumentative
• 5. Compound (two questions in one)
• 6. Beyond scope of direct

♣ Testimonial objections:
• Witness’s testimony does not relate to or directly answer the question asked

Question 5

OPINION:

Answer 5

Opinion testimony is inadmissible UNLESS witness qualifies to give either lay or expert opinion:

♣ Lay Opinion. Requirements:
• 1. Rationally based
• 2. Helpful: opinion is helpful to the trier of facts
• 3. Not expert: not based on specialized knowledge
o (e.g. car speed, emotional state, voice/handwriting, intoxication)

♣	Expert Opinion. Requirements: 
•	1. Helpful 
•	2. Qualified 
•	3. Reasonably certain   
•	4. Proper factual basis 
•	5. Reliable principals reasonably relied upon