6: Witnesses Flashcards
Lay witnesses
A non-expert witness must have personal knowledge of a matter in order to testify about that matter.
Personal knowledge may be established by the witness’s own testimony as well as through other means.
The lay witness cannot testify to knowledge obtained for the purposes of the current litigation.
Competency: children
The competence of a child depends on her:
- intelligence,
- ability to differentiate between truth and falsehood, and
- her understanding of the importance of telling the truth.
The actual age of the child is inapplicable to the issue of her competency to testify.
A child’s age may affect the weight given to her testimony, which is a question for the jury, not one of admissibility.
Jurors: after trial
After a trial, a juror may testify regarding extraneous prejudicial information brought to his attention that was not admitted at trial. Such evidence would support a motion for a new trial.
A juror generally may not testify as to:
(1) Any matter or statement that occurred during the course of the jury’s deliberations, including a misunderstanding by the jury of the judge’s instruction as to the applicable law;
(2) Her mental process concerning the verdict.
“Refreshing” present recollection
A witness whose memory is incomplete is allowed to examine any item or thing in order to “refresh” his present recollection.
- A witness is allowed to use anything to refresh his recollection, even if that thing would be inadmissible as evidence;
- But the witness may not use the item to testify; he must testify only from his refreshed memory.
The opposing party is entitled to:
- examine the item,
- cross-examine the witness about it, and
- admit relevant portions of it into evidence,
if she chooses.
Lay witnesses: common-sense impressions
A lay witness is generally not permitted to testify as to his opinion, except with respect to common-sense impressions.
To be admissible, the opinion must be:
(i) rationally based on the witness’s perception; and
(ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.
Competency
The test for whether a defendant is competent to stand trial is the same test for determining whether the defendant is competent to plead guilty:
(1) whether the defendant comprehends the nature of the proceedings against her and
(2) has the ability to consult with a lawyer with a reasonable degree of rational understanding, i.e., to participate in her own defense.
Lay witnesses: standard for personal knowledge
The standard for personal knowledge under FRE 602 is whether a reasonable juror could find that the witness is speaking on the basis of personal knowledge.
Excluding witnesses from the courtroom
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own.
But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Dead Man’s Statutes
At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication with a deceased person whose estate is a party to the suit.
Leading questions: cross examination
Leading questions are ordinarily allowed during cross-examination.
But the use of leading questions may be restricted when the cross-examination is cross-examination in form only, rather than in fact, such as when a party is cross-examined by his own lawyer after having been called as a witness by an opposing party.