4. Witnesses Flashcards
What is the General Rule of Competency Under Rule 601?
Every person is competent to be a witness.
What is The Dead Man’s Statute?
A Dead Man Statute disables/disqualifies any witness (i.e., survivor) from testifying about any transaction involving the decedent.
What is the Scope of Testimony and Requirements of Personal Knowledge of a Lay Witness under Rule 602?
A lay witness must have personal knowledge of a matter that they are testifying to.
Does an expert witness need to have personal knowledge under Rule 602?
No, this rule does not apply to a witness’s expert testimony under Rule 703.
What is Oath or Affirmation required under Rule 603?
A witness must declare to testify truthfully by oath or affirmation ‘in a form calculated to awaken his conscience.’
What happens if a witness refuses to take an oath or affirmation for religious reasons?
The judge shall NOT allow the witness to testify.
What is the requirement of an interpreter under Rule 604?
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
What is a Judge’s Competency as a witness under Rule 605?
The presiding judge may not testify as a witness at the trial.
What is a Juror’s Competency as a Witness under Rule 606(a)?
A juror may NOT testify as a witness before the jury of which they are a member.
What juror testimony is excluded under Rule 606(b)?
- Any statements made during deliberations;
- thought processes by which jurors reached their decisions; or
- votes taken to reach the verdict.
What is the exception under Rule 606(b)?
Use of racial animus as rationale for jury’s decision.
A juror is allowed to testify about:
- Outside, harmful information that was wrongly shared with them.
- A juror going to the scene or doing experiments outside of court.
- A juror being bribed or threatened.
- Problems that happened in the jury room.
What is Impeachment?
Impeachment is evidence which detracts from a witness’s credibility.
What are the four possible ways to contradict a witness’s testimony?
- Using cross-examination to get a witness to concede they were wrong;
- Using previously-introduced testimony or physical evidence;
- Showing previous inconsistent statements; or
- Introducing new evidence after the witness has left the stand.
What types of bias are relevant for impeachment?
Bias may exist from a special relationship between the parties, either favorable or hostile.
What is the ‘collateral issue’ rule in impeachment?
It bans extrinsic evidence on collateral issues unless the issue is material or important to the outcome of the case.
When is impeachment evidence relevant?
Impeachment evidence is always relevant, even if beyond the scope of the direct examination.
What are the seven methods of Impeachment?
- Interest, motive, or bias
- Incapacity to observe, recall, or relate
- Prior Inconsistent Statements
- Character evidence for truthfulness by reputation or opinion
- Character evidence for truthfulness by ‘prior bad acts’
- Prior Conviction of crime
- Contradiction.
What is Rehabilitation evidence?
Evidence which detracts from the impeachment is admissible after a witness is impeached.
What are three methods to rehabilitate a witness?
- Explain or deny
- Prior Consistent Statement
- Character evidence for truthfulness by reputation or opinion.
Who may impeach a witness under Rule 607?
The credibility of a witness may be attacked by any party, including the party calling the witness.
What is required for Impeachment by Conviction of a Crime in Georgia?
Under Georgia law, the prosecution must provide pretrial notice of its intent to offer “other crimes, wrongs, or acts” evidence.
When is notice not required for Impeachment by Conviction of a Crime in Georgia?
No notice is required if such evidence is offered to prove the circumstances surrounding the charged offense, motive, or prior difficulties between the accused and the victim, when relevant.
What is Rule 608(a)?
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for truthfulness or untruthfulness.
When can a party bolster a witness’s testimony under Rule 608?
A party may not bolster or accredit the testimony of their witness until the witness has been impeached.
What is Impeachment by Prior Bad Acts under Rule 608(b)?
Specific acts of a witness’s conduct that are probative for their truthfulness are admissible for attacking or supporting credibility.
What is the permitted method to impeach by Prior Bad Acts Under Rule 608(b)?
A question; and on cross-examination inquiring into the witness’s own prior bad acts.
What is collateral matter evidence?
Evidence solely affecting the credibility of a witness; it’s otherwise irrelevant to the cause of action or defense.
What is Impeachment on a Collateral Matter Rule?
While impeaching on a collateral matter, the cross-examiner is bound by the witness’s answer.
What is the requirement for prior convictions to be used for impeachment under Rule 609?
Prior convictions may be used if the conviction is for a crime punishable for more than one year (a felony).
What is Rule 609(a)(1)(A)?
Evidence of a prior criminal conviction for a crime punishable by death or imprisonment for more than one year is admissible to attack the witness’s character for truthfulness.
What is Rule 609(a)(1)(B)?
In a criminal case in which the witness is a defendant, evidence of a prior conviction for a crime punishable by death or imprisonment for more than one year is admissible if the probative value is greater than its prejudicial effect.
What are the five factors to determine when prior felony convictions are admissible under Rule 609(a)(1)(B)?
- Impeachment value of the former crime
- Timing of the Prior Conviction and Subsequent Criminality
- Similarity between the Prior Crime and the Charged One
- Importance of the Defendant’s Testimony
- Centrality of Credibility.
What is Rule 609(a)(2)?
In a criminal prosecution, evidence of a previous conviction for any crime involving a dishonest act or a false statement must be admitted.
Are crimes 10 years old or less involving dishonesty or false statement admissible for impeachment under Rule 609(a)(2)?
Yes, admission to impeach is mandatory.
What does Rule 609(a)(2) state regarding evidence of previous convictions?
Evidence of a previous conviction for any crime involving a dishonest act or a false statement must be admitted by the court if offered against a witness.
Are crimes 10 years old or less involving dishonesty or false statement admissible evidence for impeachment under Rule 609(a)(2)?
Yes, if 10 years old or less, admission to impeach is mandatory.
What are examples of admissible crimes involving dishonesty or false statement under Rule 609(a)(2)?
- perjury
- forgery
- theft specifically involving a lie
- criminal fraud
- any crime involving some element of deceit, untruthfulness, or falsification.
What are examples of inadmissible crimes under Rule 609(a)(2)?
- assault/battery
- prostitution
- DUI
- possession of drugs
- theft in general, not involving a lie.
What is the significance of Rule 609(b) regarding convictions more than 10 years old?
Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect and notice is given to the opponent.
How is the 10 years measured under Rule 609(b)?
The 10 years is measured from the date of the conviction or date of release from confinement, whichever is later.
What does Rule 609(c) state about the effect of a pardon or annulment?
A conviction is inadmissible if it has been pardoned, annulled, or found innocent, unless there is a later conviction with a sentence of death or over one year imprisonment.
What is the condition for admissibility of juvenile adjudications under Rule 609(d)?
Evidence of a juvenile adjudication is admissible only if it is offered in a criminal case and meets specific criteria related to credibility.
What does Rule 609(e) state regarding convictions under appeal?
A conviction under appeal or evidence of the pendency is admissible.
Is a conviction in another state or federal court admissible to impeach?
Yes, a conviction in another state or in a federal court is admissible to impeach.
Is a nolo contendere plea admissible to impeach?
Yes, a nolo contendere plea may be used to impeach in a subsequent civil or criminal proceeding.
What does Rule 610 state regarding religious beliefs or opinions?
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
What is the purpose of Rule 611(a)?
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence to make procedures effective for determining the truth.
What does Rule 611(b) state about the scope of cross-examination?
Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
The court may, in the exercise of discretion, permit inquiry into additional matters as If on direct examination.
Cross-Examination in Georgia
Georgia allows very broad cross-examination. Anything that is material and relevant to the controversy is fair game.
When are leading questions allowed according to Rule 611(c)?
Leading questions are allowed on cross-examination and when calling a hostile witness.
What are the four situations in which judges most often allow attorneys to lead witnesses on direct examination?
- To establish pedigree information
- To direct a witness’s attention to a relevant place and time
- To help a witness who is hesitant or confused
- Hostile witnesses.
What does Rule 612 state about refreshing a witness’s memory?
Refreshing may be accomplished by handing the writing to the witness, accompanied by a request to the witness to read the writing to himself. Thereupon counsel retrieves the writing and repeats the question. At this point, the witness testifies from his own jogged present recollection.
Does the document used need to had been created by the witness in order to use it to refresh his recollection?
No.
What rights does the opponent have after a party introduces evidence to refresh a witness’s memory?
- Inspect the evidence
- Cross-examine with the evidence
- Show the writing to the jury for comparison
- Introduce relevant portions into evidence.
What happens when privileged material is used to refresh a witness’s memory?
The court will rule that a waiver has occurred and allow the adverse party to inspect the material.
What does Rule 613(a) state about a witness’s prior statement?
When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness.
How is a witness’s prior inconsistent statement used for impeachment?
A prior inconsistent statement is not admissible substantively and cannot be used for any purpose other than the impact on the witness’s credibility.
Prior Inconsistent statement in Georgia
Under Georgia law, a prior inconsistent statement of a witness is admissible both to impeach the witness and if the witness is available for cross-examination, as substantive evidence.
What is Rule 613(b) regarding extrinsic evidence of a prior inconsistent statement?
Extrinsic evidence is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness.
What is Rule 614(a) about the court calling a witness?
The court may call a witness on its own or at a party’s request, and each party is entitled to cross-examine the witness.
What does Rule 615 state about excluding witnesses?
At a party’s request, the court must order witnesses excluded so they cannot hear other witnesses’ testimony.
