4. Witnesses

Question 1

The testimonial qualifications a witness must have in order to be allowed to testify

Answer 1

1. Personal Knowledge

2. Oath or Affirmation

Question 2

NY rule for testimony by children

Answer 2

The general rule is that a child of any age may testify under oath if the child understands and appreciates the duty to tell the truth.

Civil cases: A child must be able to testify under oath.

Exception for Criminal cases: A child under the age of 9 who cannot understand the duty of an oath may still testify (i.e., the child may give unsworn testimony.) BUT, a defendant cannot be convicted based solely on the unsworn testimony of a child. There must be some corroborating evidence that the D committed the crime.

Question 3

NY Dead Man’s Statute

Answer 3

1. In a civil action,
2. an interested witness
3. is incompetent to testify
4. against the estate of a decedent
5. concerning a personal transaction or communication between the interested witness and the decedent.

Question 4

New York automobile accident exception

Answer 4

In an auto accident case based on negligence, the surviving interested party:

1. May testify about her observations of the decedent’s conduct and demeanor.
2. But may not testify about oral statements made by the decedent.

Question 5

General rules for leading questions

Answer 5

1. Generally are not allowed on direct examination of witness.
2. Generally are allowed on cross-examination of witness.

Question 6

Leading questions are allowed on direct exam in four situations:

Answer 6

1. Preliminary introductory matters
2. Youthful or forgetful witness
3. Hostile witness
4. Opposing party

Question 7

Basic Rule for Writings in Aid of Oral Testimony

Answer 7

Witness may not read from prepared memorandum; must testify on basis of current recollection.

But if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.

Question 8

Safeguards for Writings in Aid of Oral Testimony

Answer 8

Adversary has right:

1. to inspect the memory-refresher
2. to use it on cross-examination
3. to introduce it into evidence

Question 9

Hearsay exception for past recollection recorded

Answer 9

Foundation for reading contents of writing to the jury:

1. showing writing to witness fails to jog memory
2. witness had personal knowledge at former time
3. writing was either made by witness, or adopted by witness
4. making or adoption occurred while the event was still fresh in the witness’ memory
5. witness can vouch for accuracy of writing when made or adopted.

Question 10

NY distinction for past recollection recorded

Answer 10

If the 5-factor foundation is established, the writing may be shown to the jury. Under FRE, the proponent may only read it to the jury.

Question 11

Lay opinion admissible if:

Answer 11

(1) The opinion is rationally based on the witness’ perception
(personal knowledge), and

(2) Helpful to the jury

Question 12

Qualifications for an Expert Witness

Answer 12

1. Education (academic degrees)
   AND/OR
2. Experience (personal experience)

Question 13

Proper Subject Matter for an Expert Witness

Answer 13

Scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact.

E.g., an opinion is not helpful if the proposition is obvious, such as expert testimony that children are attracted to red balloons.

Question 14

Basis of Opinion for an Expert Witness

Answer 14

The expert may draw upon three permissible data sources:

(1) Personal knowledge (e.g., treating physician);
(2) Other evidence in the trial record (testimony by other witnesses, exhibits (medical reports, X-rays))—made known to expert at trial by hypothetical question; or

(3) facts not in evidence (from outside the record) if
the outside material is of a type reasonably relied upon by experts in this particular field in forming opinions

Question 15

Relevance and Reliability Requirement for an Expert Witness

Answer 15

To be admissible, expert opinion must be relevant to the issue at hand and SUFFICIENTLY RELIABLE. That means the expert must use reliable methods and principles and reliably apply them to the facts of the case.

Question 16

NY Standard for Relevance and Reliability Requirement for an Expert Witness

Answer 16

If the opinion is based on science (e.g., medicine, engineering, social psychology), the method or principle must have achieved general acceptance in the relevant field (Frye standard).

Question 17

Learned Treatise in Aid of Expert Testimony (Federal Hearsay Exception)

Answer 17

(1) On direct examination of party’s own expert: Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority.
(2) On cross-examination of opponent’s expert: Relevant portions of treatise, etc. may be read into evidence to impeach and contradict opponent’s expert. Also, comes in as substantive evidence.

Question 18

Learned Treatise in Aid of Expert Testimony (NY Hearsay Exception)

Answer 18

(1) On direct examination of party’s own expert: There is no hearsay exception in New York for the contents of a learned treatise. The treatise may only be used to show the general basis of the expert’s testimony, not as substantive evidence.
(2) On cross-examination of opponent’s expert: The learned treatise may only be used to impeach the expert’s credibility (not as substantive evidence), AND only if the expert relied on the treatise in developing her own opinion or acknowledged on cross that it is a reliable authority.

Question 19

Proper subject matter for cross examination

Answer 19

1. Matters within the scope direct examination,

AND

2. Matters that test the witness’s credibility.

Question 20

Rule on Bolstering Own Witness

Answer 20

Not allowed until after the witness’ credibility has been impeached.

Question 21

Rule on witnesses prior identification

Answer 21

Witness who made prior identification must testify at trial and must be subject to current cross-examination. For example, if the individual who made the identification at the line-up is out of the country at the time of trial, a police officer who observed the out-of-court identification would not be permitted to testify about it at trial.

Question 22

Federal Rule on a Party’s Impeachment of Own Witness

Answer 22

Any party may impeach any witness, including her own witness, by any method of impeachment. (Note: Although the Rules speak only of impeaching a witness on cross-examination, a party can impeach her own witness during direct examination.)

Question 23

NY Rule on a Party’s Impeachment of Own Witness

Answer 23

General rule: A party may not impeach her own witness.

Exception: A party may impeach her own witness with a prior inconsistent statement but only if it was:

(1) made in writing and signed by the witness, or
(2) made in oral testimony under oath.

Additional limitation in criminal cases: the prior inconsistent statement may be used only if the witness’s current testimony is affirmatively damaging to the party who called the witness, not merely a “cloud on credibility.”

Question 24

Using Prior Inconsistent Statements to Impeach a Witness

Answer 24

A witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.

The prior inconsistent statement is admissible only for the purpose of impeachment (to suggest trial testimony is false or mistaken

Question 25

Under the FRE, when may a prior inconsistent statement of a witness be admitted both to impeach and as substantive evidence (to prove the truth of the matter asserted in the prior statement)?

Answer 25

If the witness is currently subject to cross-examination and the prior inconsistent statement was made:

1. Orally under oath, and
2. As part of a formal hearing, trial, or deposition. (called hearsay exclusion)

Question 26

Impeaching a Witness by Showing Bias, Interest or Motive to Misrepresent

Answer 26

May impeach a witness by showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case. Purpose: to suggest testimony is false, slanted, or mistaken in party’s favor.

Question 27

Must witness be confronted with alleged bias while on the stand?

Answer 27

Federal: Yes

New York: Confrontation of witness not required.

Question 28

Impeaching a Witness by Showing Sensory Deficiencies

Answer 28

1. Anything that could affect witness’s perception or memory.
2. No confrontation required.
3. Extrinsic evidence is allowed.

Question 29

Impeaching a Witness by Showing Bad Reputation or Opinion About Witness’s Character for Truthfulness

Answer 29

1. Any witness is subject to impeachment by this method.
2. Confrontation required? No
3. Extrinsic evidence allowed? Yes

Question 30

NY Distinction on Impeaching a Witness by Showing Bad Reputation or Opinion About Witness’s Character for Truthfulness

Answer 30

Character witness can only testify about target witness’s bad reputation for truthfulness. (Opinion on truthfulness not allowed.)

Question 31

Federal Rule for Permissible Types of Convictions for Impeaching a Witness by Showing Criminal Convictions

Answer 31

(1) Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove:
false statement as an element of the crime (the uttering of false words) ex. fraud, perjury

(2) If conviction did not require proof of false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).

Question 32

Federal Rule for Time Limitation for Impeaching a Witness by Showing Criminal Convictions

Answer 32

As to both categories, the conviction, or release from prison, whichever is later, generally must be within 10 years of trial.

Question 33

NY Rule for Impeaching a Witness by Showing Criminal Convictions

Answer 33

Any witness may be impeached with a conviction for any crime, without regard to how old the conviction is and without balancing probative value vs. the danger of unfair prejudice.

Question 34

NY Special Rule for Impeaching Criminal Defendants with Criminal Convictions

Answer 34

When the witness is the criminal defendant who testifies in his own defense, the court must conduct a hearing to balance the probative value of the conviction (on the issue of D’s credibility) against the risk of unfair prejudice .

Question 35

FRE Rule for Impeaching a Witness with Inquiry About Bad Acts (without conviction) if they reflect adversely on witness’s character for truthfulness

Answer 35

A witness may be asked about a prior bad act if it relates to deceit or dishonesty.

The only permissible procedure: Confrontation on cross examination. You can only ask the witness about it.

Question 36

NY Rule for Impeaching a Witness with Inquiry About Bad Acts (without conviction)

Answer 36

A witness may be asked about any prior bad act that is vicious, criminal, or immoral, subject to the court’s discretion, even if it does not directly relate to truthfulness, e.g., arson, burglary, rape. (Proof with extrinsic evidence not allowed.) Inquiry is subject to court’s discretion.

But when the prosecution seeks to ask about a prior bad act to impeach a criminal defendant who testifies in his own defense, the defendant is entitled to a hearing at which the court must balance the probative value of the bad act on the issue of the defendant’s credibility against the danger of unfair prejudice. (Apply same balancing factors that are used to impeach a criminal defendant with his convictions.)

Question 37

Rule for Impeaching a Witness with a Contradiction

Answer 37

Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.

Question 38

When is extrinsic evidence permissible to impeach a witness with a contradiction?

Answer 38

Extrinsic evidence not allowed for the purpose of contradiction if the fact at issue is collateral (i.e., if the fact has no significant relevance to the case or to the witness’s credibility).

Question 39

Rule on rehabilitation

Answer 39

Generally, a witness may be rehabilitated only after the witness’ credibility has been attacked through impeachment. There are two methods of rehabilitation tested on the exam.

Question 40

When and how can you rehabilitate a witness by showing witness’s good character for truthfulness?

Answer 40

When? Only when the impeachment clearly suggested that your witness was lying, as opposed to only being mistaken.

How? You bring out a character witness to testify that they have a good character for truthfulness.

Question 41

When can you rehabilitate a witness with a prior consistent statement to rebut a charge of recent fabrication?

Answer 41

If the witness’s trial testimony is charged as a recent fabrication (e.g., product of recent improper influence or bias), a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge if the statement was made before the motive to fabricate arose.