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Evidence > Chapter 2 - Sources of Evidence: Witnesses (Evidence Book p. 75-77) > Flashcards

Chapter 2 - Sources of Evidence: Witnesses (Evidence Book p. 75-77) Flashcards

1
Q

Before a witness may testify in open court, that witness first must be deemed qualified, or eligible, or _____________ to take the stand.

A

competent

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2
Q

General rule of Competency. What Rule?

A

Rule 601

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3
Q

There is an extremely low threshold of competency requirements under Rule 601 because witnesses are _______ to be _________.

A

presumed to be competent

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4
Q

Traditional common law witness disqualifications have been ___________.

A

eliminated

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5
Q

We now rely primarily on ______________________ to bring to light concerns about a witness’s credibility.

A

cross-examination

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6
Q

Do a witness’s history of mental incapacitation, psychological problems, or drug/alcohol abuse disqualify a witness from testifying?

A

NO

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7
Q

A witness’s history of mental incapacitation, psychological problems, or drug/alcohol abuse does not disqualify a witness from testifying as long as the witness can ______________ in court to some degree and can appreciate the __________ ______ _______ _______ _________.

A

communicate

duty to tell the truth

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8
Q

A witness’s history of mental incapacitation, psychological problems, or drug/alcohol abuse does not disqualify a witness from testifying as long as the witness can communicate in court to some degree and can appreciate the duty to tell the truth. Such issues go to the witness’s __________, not competency, unless the witness cannot communicate at all or is completely unintelligible.

A

credibility

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9
Q

Is there a minimum age requirement to testify?

A

No

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10
Q

There is no minimum age requirement to testify; it just depends on the ___________ and _____________ of the child.

A

intelligence and maturity

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11
Q

An infant of 1-2 years presumably would not be able to communicate meaningfully, appreciate the difference between reality and a falsehood, and understand the duty to tell the truth. True or False.

A

True

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12
Q

It is a discretionary decision by the judge, who can ____ ______ the child - ask various questions of the child in order to make these determinations.

A

voir dire

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13
Q

Because ____________ is still not fully understood, and is susceptible to suggestion and planted memories, previous ____________ witnesses are often not allowed to testify.

A

hypnosis

hypnotized

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14
Q

Although courts can disallow regular witnesses from testifying when they have undergone previous hypnosis (or at least place limits upon them), a per se rule preventing a criminal defendant witness to testify who has undergone hypnosis is ___________________.

A

unconstitutional

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15
Q

Although courts can disallow __________ ___________ from testifying when they have undergone previous hypnosis (or at least place limits upon them), a per se rule preventing a _________ __________ ___________ to testify who has undergone hypnosis is unconstitutional.

A

regular witnesses

criminal defendant witness

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16
Q

Rule 605

A

Judges and Jurors as Witnesses

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17
Q

Judges and Jurors as witnesses

A

Rule 605

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18
Q

___________ and _________ are incompetent to testify in cases before them.

A

judges and jurors

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19
Q

Judges and jurors are _______________ to testify in cases before them.

A

incompetent

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20
Q

Judges and jurors are incompetent to testify in cases before them. However jurors may be able to testify about previous cases on which they served, if:
1. ?
2.

A
  1. there was juror misconduct; and
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21
Q

Judges and jurors are incompetent to testify in cases before them. However jurors may be able to testify about previous cases on which they served, if:
1.
2. ?

A
  1. that misconduct was the result of an “extraneous outside influence.”
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22
Q

___________ __________ ___________ (such as a threat or bribe, or viewing improper evidence by jurors).

A

extraneous outside influence

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23
Q

A juror cannot testify about juror misconduct resulting from ___________ _____________.

A

internal influences

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24
Q

mistaken mental impressions.

A

Internal Influences

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25
Q

alcohol or drugs consumed

A

Internal Influences

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26
Q

lack of sleep by jurors

A

Internal Influences

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27
Q

The policy is to preserve verdict stability, maintain public confidence in verdicts, and prevent later juror harassment.

A

A juror cannot testify about juror misconduct resulting from Internal Influences.

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28
Q

These statutes prohibit the testimony of an interested witness if that witness offers to testify about an issue where the only opposing witness would be a dead person.

A

State Dead Man Statutes

29
Q

These statutes apply in some (not all) ______ _______; however, they also can apply in federal court in ___________ __________ (or if there is a supplemental state law claim in a federal question case.)

A

state courts
diversity cases

30
Q

Rule 601 treats these state provisions as “substantive,” rather than “procedural” and so they apply in ____________ __________ under the Erie Doctrine.

A

diversity cases

31
Q

The personal knowledge requirement

A

Rule 602

32
Q

Rule 602

A

The personal knowledge requirement

33
Q

A witness is qualified to testify only regarding those matters about which a witness has _____________ ____________.

A

personal knowledge

34
Q

A witness is qualified to testify only regarding those matters about which a witness has personal knowledge - the extent to which the witness actually has __________ something _______ ________ in the case

A

perceived
first hand

35
Q

A witness is qualified to testify only regarding those matters about which a witness has personal knowledge - the extent to which the witness actually has perceived something first hand in the case and ___________ ___________.

A

reasonable opinions

36
Q

A witness’s general competency to testify is limited by the scope of that witness’s ____________ ____________.

A

personal knowledge

37
Q

A witness’s general competency to testify is limited by the scope of that witness’s personal knowledge. Important exceptions exist, such as Rule 702 ________ ___________, and Rule 801(d), 803, and 804(b) hearsay exclusions and exceptions

A

expert testimony

38
Q

The Oath or Affirmation Requirement

A

Rule 603

39
Q

Rule 603

A

The Oath or Affirmation Requirement

40
Q

Under Rule 603, a witness must be willing to _________ _________ by oath or affirmation to awaken the witness’s conscience regarding the duty to tell the truth under penalty of perjury.

A

testify truthfully

41
Q

Under Rule 603 a witness must be willing to testify truthfully by _________ or ___________ to awaken the witness’s conscience regarding the duty to tell the truth under penalty of perjury.

A

oath or affirmation

42
Q

Are there official words the judge must use for an oath or affirmation?

A

No

43
Q

There are no official words the judge must use, and the judge has the discretion to formulate the _______ or ____________.

A

oath or affirmation

44
Q

Witness Examination

A

Rule 611

45
Q

Rule 611

A

Witness Examination

46
Q

The judge has a great deal of discretion to regulate the presentation of evidence, and witness testimony at trial. True or False?

A

True

47
Q

Rule 611(a)

A

Direct Examination

48
Q

Direct Examination

A

Rule 611(a)

49
Q

Attorneys should generally ask ______ _______, ___________ ____________ who, what, when, where and why questions when examining a non-adverse/ non-hostile witness.

A

open ended - non-leading

50
Q

Attorneys should generally ask open ended - non-leading ________, _________, _________, __________, and _______ questions when examining a non-adverse/ non-hostile witness.

A

who
what
when
where
why

51
Q

The witness can tell the story (in a non-narrative way) supporting the party’s legal claims or defenses while building rapport and establishing credibility. When is this done?

A

direct examination

52
Q

The witness can tell the story (in a non-narrative way) supporting the party’s legal claims or defenses while building ________ and establishing ____________.

A

rapport
credibility

53
Q

Rule 611(b) and (c)

A

Cross Examination

54
Q

Cross Examination

A

Rule 611(b) and (c)

55
Q

Under 611(b), the scope of the cross-examination is usually limited to the scope of the _______ _____________ unless the judge, in her discretion, allows the attorney to question beyond that scope.

A

direct examination

56
Q

Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1. ?
2.
3.
4.

A
  1. perception of events
57
Q

Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2. ?
3.
4.

A
  1. memory of events
58
Q

Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3. ?
4.

A
  1. communication of the story
59
Q

Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3.
4. ?

A
  1. truthfulness of the witness (either their bias, their prior inconsistent statements, and/or their character for truthfulness).
60
Q

Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3.
4.

A
  1. perception of events
  2. memory of events
  3. communication of the story and
  4. truthfulness of the witness
61
Q

Cross-Examination: Under 611(c), attorneys should ask short, concise, __________ __________ that suggest the answer the attorney is looking for in an effort to undermine the credibility of the witness.

A

leading questions

62
Q

Refreshing a Witness’s Memory

A

Rule 612

63
Q

Rule 612

A

Refreshing a Witness’s Memory

64
Q

If a witness forgets a relevant fact either before or while testifying, an attorney can _________ that witness’s ______________ of events by showing the witness a document either authored by the witness or another person.

A

refresh
recollection

65
Q

The document is used in this moment as a _________ _______ not as a ___________ for the witness’s testimony.

A

memory spark
replacement

66
Q

Rule 612 then allows the opposition to request production of that document for _______ ___________ purposes.

A

cross examination

67
Q

Rule 612 (Refreshing a Witness’s Memory) The document itself is not admitted into evidence (unless the opposing party submits it), because it is not evidence, it was merely used to refers the witness’s _______________.

A

recollection

68
Q

Only the testimony from the witness’s refreshed recollection is ____________.

A

evidence

69
Q

Distinguish Rule 803 Past Recollection Recorded - a hearsay exception when a witness’s recollection cannot be refreshed but was recorded in a document from Rule 612 Refreshed Recollection where the item/ document is used solely to refresh the witness’s memory, and the witness can now testify from her memory. True!!!

A

True!!!

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