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

Question 1

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

Answer 1

competent

Question 2

General rule of Competency. What Rule?

Answer 2

Rule 601

Question 3

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

Answer 3

presumed to be competent

Question 4

Traditional common law witness disqualifications have been ___________.

Answer 4

eliminated

Question 5

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

Answer 5

cross-examination

Question 6

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

Answer 6

NO

Question 7

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 __________ ______ _______ _______ _________.

Answer 7

communicate

duty to tell the truth

Question 8

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.

Answer 8

credibility

Question 9

Is there a minimum age requirement to testify?

Answer 9

No

Question 10

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

Answer 10

intelligence and maturity

Question 11

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.

Answer 11

True

Question 12

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

Answer 12

voir dire

Question 13

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

Answer 13

hypnosis

hypnotized

Question 14

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 ___________________.

Answer 14

unconstitutional

Question 15

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.

Answer 15

regular witnesses

criminal defendant witness

Question 16

Rule 605

Answer 16

Judges and Jurors as Witnesses

Question 17

Judges and Jurors as witnesses

Answer 17

Rule 605

Question 18

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

Answer 18

judges and jurors

Question 19

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

Answer 19

incompetent

Question 20

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.

Answer 20

1. there was juror misconduct; and

Question 21

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. ?

Answer 21

2. that misconduct was the result of an “extraneous outside influence.”

Question 22

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

Answer 22

extraneous outside influence

Question 23

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

Answer 23

internal influences

Question 24

mistaken mental impressions.

Answer 24

Internal Influences

Question 25

alcohol or drugs consumed

Answer 25

Internal Influences

Question 26

lack of sleep by jurors

Answer 26

Internal Influences

Question 27

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

Answer 27

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

Question 28

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.

Answer 28

State Dead Man Statutes

Question 29

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.)

Answer 29

state courts diversity cases

Question 30

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

Answer 30

diversity cases

Question 31

The personal knowledge requirement

Answer 31

Rule 602

Question 32

Rule 602

Answer 32

The personal knowledge requirement

Question 33

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

Answer 33

personal knowledge

Question 34

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

Answer 34

perceived first hand

Question 35

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 ___________ ___________.

Answer 35

reasonable opinions

Question 36

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

Answer 36

personal knowledge

Question 37

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

Answer 37

expert testimony

Question 38

The Oath or Affirmation Requirement

Answer 38

Rule 603

Question 39

Rule 603

Answer 39

The Oath or Affirmation Requirement

Question 40

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.

Answer 40

testify truthfully

Question 41

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.

Answer 41

oath or affirmation

Question 42

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

Answer 42

No

Question 43

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

Answer 43

oath or affirmation

Question 44

Witness Examination

Answer 44

Rule 611

Question 45

Rule 611

Answer 45

Witness Examination

Question 46

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

Answer 46

True

Question 47

Rule 611(a)

Answer 47

Direct Examination

Question 48

Direct Examination

Answer 48

Rule 611(a)

Question 49

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

Answer 49

open ended - non-leading

Question 50

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

Answer 50

who what when where why

Question 51

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?

Answer 51

direct examination

Question 52

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

Answer 52

rapport credibility

Question 53

Rule 611(b) and (c)

Answer 53

Cross Examination

Question 54

Cross Examination

Answer 54

Rule 611(b) and (c)

Question 55

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.

Answer 55

direct examination

Question 56

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

Answer 56

1. perception of events

Question 57

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

Answer 57

2. memory of events

Question 58

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

Answer 58

3. communication of the story

Question 59

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

Answer 59

4. truthfulness of the witness (either their bias, their prior inconsistent statements, and/or their character for truthfulness).

Question 60

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

Answer 60

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

Question 61

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.

Answer 61

leading questions

Question 62

Refreshing a Witness's Memory

Answer 62

Rule 612

Question 63

Rule 612

Answer 63

Refreshing a Witness's Memory

Question 64

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.

Answer 64

refresh recollection

Question 65

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

Answer 65

memory spark replacement

Question 66

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

Answer 66

cross examination

Question 67

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 _______________.

Answer 67

recollection

Question 68

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

Answer 68

evidence

Question 69

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!!!

Answer 69

True!!!