4) Witnesses, inc. impeachment

Question 1

general rule of competency 601

Answer 1

every person competent to be a wit

Question 2

dead man’s statutes: fre?

Answer 2

no! only state law, could come in under diversity/Erie

Question 3

dead man’s statute: def

Answer 3

wit can’t testify re any convo or transaction w the deceased

Question 4

lay wit reqs: 602

Answer 4

must have personal knowledge

Question 5

wit oaths: 603

Answer 5

must take or can’t testify, no excuses

Question 6

judge as wit

Answer 6

presiding judge can never testify

automatic, dnn object (plain error)

Question 7

juror as wit

Answer 7

no

Question 8

juror testify re deliberations 606(a) rule

Answer 8

generally NOT at all re manner in which reached verdict, inc no affidavits

(even if things got very improper)

Question 9

juror testify re deliberations: exceptions

Answer 9

–juror’s st during deliberations that tends to show racial animus was significant motivating factor in vote to convict

–etraneous prejduicial information / outside influence on any juror

–clerical error on verdict form

Question 10

impeachment: who

Answer 10

ANY party may attack credibility of a wit (ok attack your own wit)

Question 11

collateral matter rule

Answer 11

collateral matter = evidence solely re credibility of wit

extrinsic evidence on collateral matters is inadmissible to impeach

ie: when only about crediblity, questioning party is bound by witness’ answers on cross – CANT CALL IN OTHER WITS / DOCS re the collateral issue

Question 12

impeachment: bias: CMR

Answer 12

CMR does not apply – bias is always material

Question 13

impeachment: bias: exs

Answer 13

1) personal or family rship or hositility
2) business rship
3) confidential informant
4) fee arrangement

Question 14

impeachment: sensory defects: CMR?

Answer 14

no

but usu not allowed ask if ADDICTED to drugs/alcohol

Question 15

impeachment: kinds

Answer 15

1) bias
2) sensory defects
3) prior inconsistent sts
4) character

Question 16

impeachment: ch: vs 404

Answer 16

ch evid for impeachment:

• -of witness (could be a party)
• -just about truthfulness
• -for limited use of impeachment (NOT about ch overall)

Question 17

impeachment: ch: 608(a) wit’s ch for untruthfulness

Answer 17

• -always material
• -may attack by reputation + opinion evidence
• -either party can call a wit

Question 18

impeachment: ch: 608(a): wit’s ch for TRUTHFULNESS

Answer 18

can be shown by reputation or opinion only if wit’s ch for truthfulness was first attacked – no bolstering in advance

Question 19

impeachment: ch 608(b): specific acts

Answer 19

can ask questions on cross-exam re prior unconvicted acts (specific instances) bearing on (un)truthfulness (ok to support too) – but no extrinsic evidence

Question 20

impeachment: ch 608(b): specific acts: limitations

Answer 20

1) must be probative of truthfulness
2) must be asked in good faith
3) can’t be too remote in time (403)
4) only questions of fact
5) no rumors
6) NO ARRESTS

Question 21

impeachment: ch: convictions 609: scope

Answer 21

civil + crim

all parties

Question 22

impeachment: ch: convictions 609: kinds

Answer 22

1) felonies

2) crimes involving dishonesty or false st (felony or misdemeanor

Question 23

impeachment: ch: convictions 609: felonies: rule 609(a)(1)

Answer 23

1) for wit other than D: subject felony convictio to 403 balancing – discretionary
2) for the D – will admit if probative value outweighs the prejudicial effect

Question 24

felony: def

Answer 24

crimes punishable by death or imprisonment of more than 1 year

Question 25

impeachment: ch: convictions 609: crimes w dishonesty 609(b)

Answer 25

admissible as a matter of right (no balancing) as long as less than or equal to 10 years old

Question 26

crimes w dishonesty: def

Answer 26

any crime where deceit or untruthfulness = element

Question 27

crimes w dishonesty: theft

Answer 27

no! (but larceny by trick–yes)

Question 28

convictions less than 10 years old – how measure

Answer 28

fromd ate of conviction or of release, whichever is more recent

Question 29

impeachment: ch: convictions 609: crimes of dishonesty 609(b): if more than 10 years old

Answer 29

not admissible unless probative value substantially outweighs prejudicial effect

must give notice to opponent

Question 30

impeachment: ch: convictions 609: juvenile convictions

Answer 30

generally inadmissible

NEVER admissible against D if testifies

Question 31

impeachment: ch: convictions 609: convictions on appeal

Answer 31

still admissible, but can tell jury it’s on appeal

Question 32

impeachment: ch: convictions 609: convictions that are pardoned

Answer 32

not admissible

Question 33

impeachment: ch: convictions 609: arrest records, indictments, charges

Answer 33

not admissible under this rule

Question 34

impeachment: ch: convictions 609: guilty pleas

Answer 34

yes admissible

Question 35

impeachment: ch: convictions 609: suppressed evidence

Answer 35

yes admissible (FOR impeachment only)

Question 36

can D hide prior convictions by not testifying?

Answer 36

generally yes, but:

1) admissible at sentencing
2) under 404(b) – someone else puts D’s ch at issue

Question 37

evidence of wit’s relig believes 610

Answer 37

inadmissible to impair or enhance credibility

Question 38

jurors asking qs? 611

Answer 38

yes in fed ct

Question 39

times leading q may be appropriate on direct

Answer 39

1) hostile wit
2) adverse wit
3) child wit
4) preliminary background info
5) refreshing recollection

Question 40

time you CAN’T use leading q on cross

Answer 40

if examiner and wit are on same side, can never use leading qs

Question 41

scope of cross 611(b)

Answer 41

limited to:

scope of direct + matters affecting credibility

Question 42

refreshing recollection: 612: scope

Answer 42

NOT extrinsic – just jogging memory –> asking wit to testify independently of the writing

the doc isn’t evidence + dnn authenticate

this is not past recollection recorded, 803(5) which is a substantive use of the doc

Question 43

refreshing recollection: 612: rights of adverse party

Answer 43

inspect it
cross-examine w it
show to jury to compare w testimony
introduce relevant portison into evidence

Question 44

refreshing recollection: 612: use of privileged material

Answer 44

waiver has occurred + other side can inspect

but, only waived for this lmited purpose

Question 45

prior inconsistent st 613: contrast other rule

Answer 45

here, prior inconsistent st is NOT sworn. Admissible ONLY to impeach

vs 801: PINS comes in for truth

Question 46

prior inconsistent st 613: scope

Answer 46

can be oral or written

if not given under oath, can ONLY be used for impeachment (ex. dv police report)

Question 47

prior inconsistent st 613: things must do

Answer 47

1) dnn show wit, but must show to OPC on request

2) can’t call wit just to impeach w piror st

Question 48

prior inconsistent st 613: foundation required

Answer 48

extrinsic evidence of the st may be admissible if:

1) wit has opportunity to explain or deny at some point
2) OPC opportunity to interrogate sponsoring wit, unless interests of justice require otherwise
3) if wit DENIES making the PINS, extrinsic evidence avail TO IMPEACH only
4) if wit admits the PINS, wit has right to explain answer

Question 49

sequestering wits: 615

Answer 49

at request of party, court shall order wits excluded, so can’t hear tmony of other wits

Question 50

sequestering wits: 615: exceptions

Answer 50

can’t exclude:

1) party or party’s rep
2) essential wits, like expert
3) persons exempted by statute (victim of crime)

Question 51

sequestering wits: 615: result if court dn exclude

Answer 51

error

remedy = mistrial (must show greater than harmless error)