C. Witnesses Flashcards
Is a spouse competent to give testimony against the other spouse?
Yes. However, spouses are entitled to invoke a privilege for confidential communication in any type of proceeding.
Does a prior conviction render a witness incompetent?
No. However can be impeach the W credibility
What is the NY’s Dear Man’s Statute?
When it does not apply?
Prohibitation to any ‘interested’ person to testify against Deceased/Mentally ill person’s executor/administrator/survivor.
Exception: To testify as to the facts involving accidents involving negligence claim in operation of motor vehicle
Competency
When may Child less than 9 years old be allowed to give testimony under oath (rebut statutory presumption of incapability)?
W must show;
1) Sufficient intelligence and capacity to justify testimony
2) Knowledge + appreciation of nature of oath before trial
If W is under mental defect/can NOT rebut presumption => Court must be satisfied W has sufficient intelligence + capacity to justify testimony without the oath
Impeachment - Inconsistent stms
Can a party impeach their own W with prior inconsistent stms?
No. Except:
Civil case: writing suscribed by the W or made under oath,
- stms in a Deposition, OK to contradict and to impeach
- Trial testimony (in case subsequent civil action with same parties, and subject matter) OK to contradict and to impeach
- Criminal case: Written/oral stms made under oath contradicting on a material issue, disproving the position of the party
Admissible to impeach
Inadmissible: stm not disprove party’s position-
Others:
No extrisinc evidence to impeach on collateral matter
If W’s stms are of fact material to the case, OK contradict in X-ex or by extrensic evidence
Impeachment - Inconsistent stms
When may Witness’ inconsistent statements be admissible?
1) Written/Oral statement inconsistent with stm gave in court.
2) made under oath
2) Statement contradicts W’s testimony upon material issue
- Tending to disprove Party’s position
What is required for Accomplice’s testimony be used to convict D?
Corroborative evidence
- Tending to connect D w/ offence commission
- NOT required to be independent of, but rather harmonise w/ Accomplice’s testimony
Impeachment - Prior convictions
How can you impeach W with prior convictions of a crime?
Civil: By X-ex and by record. X-ex does not conclude by such W’s answer. Felonies and misdemeanors.
Criminal: If W denies it in X-ex, then I can introduce the record. (Crime-violation but not traffic infractions)
- A D that testified impeach on X-ex inquiry on “criminal, vicious or inmoral acts” to attack credibiity
- Prosc. must disclose prior bad acts 15 days before the trial.
- D can seek and advance rulling on what prior bad acts are allowed to be ask to the Proc. -Balancing test - probative woth of evidence with the risk of unfair prejudice to D.
- D has the burden of proof. Probative value is substantially outweigthed by its potential for unfair prejudice so as to warrant exclusion.
When may Witness’ prior convictions be used on cross-examination for impeachment?*
Civil proceeding
- For purpose of affecting W’s testimony
- For W to answer relevant qs (BUT this does NOT conclude cross-examination)
Criminal proceeding
- If D denies conviction => Prosecution may independently prove conviction
- Felonies/Misdemeanors
When may D’s specific instances of conduct be admissible?*
To prove D’s guilty knowledge in similar offences
- Crime NOT innocently/inadvertently committed
- Intent is NOT easily inferred from crime
For what purpose may Party introduce extrinsic evidence during Witness cross-examination?*
1) Contradict W’s answers concerning collateral matters
2) To impeach W’s credibility ONLY
For what purpose may Party call other witnesses during Witness cross-examination?
To prove W’s character for untruthfulness
What is required for Expert Opinions to be admissible?*
1) Conclusions depend on professional or scientific knowledge/skill
2) NOT within range of ordinary training/intelligence
(Admissibility depends on Trial Court’s discretion)
How may questions and answers calling for Expert Opinion be addressed?
Questions
- Hypothetical form NOT required
Answers
- NO initial proof of data required (UNLESS upon cross-examination)
What is required for new scientific evidence to be introduced?*
Frye Test
- Accepted techniques generate results accepted as reliable within scientific community (when properly performed)
- Separate question from admissibility question (whether there is proper foundation to admit the evidence)
