Chapter 2 - Sources of Evidence: Witnesses (Evidence Book p. 75-77) Flashcards
Before a witness may testify in open court, that witness first must be deemed qualified, or eligible, or _____________ to take the stand.
competent
General rule of Competency. What Rule?
Rule 601
There is an extremely low threshold of competency requirements under Rule 601 because witnesses are _______ to be _________.
presumed to be competent
Traditional common law witness disqualifications have been ___________.
eliminated
We now rely primarily on ______________________ to bring to light concerns about a witness’s credibility.
cross-examination
Do a witness’s history of mental incapacitation, psychological problems, or drug/alcohol abuse disqualify a witness from testifying?
NO
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 __________ ______ _______ _______ _________.
communicate
duty to tell the truth
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.
credibility
Is there a minimum age requirement to testify?
No
There is no minimum age requirement to testify; it just depends on the ___________ and _____________ of the child.
intelligence and maturity
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.
True
It is a discretionary decision by the judge, who can ____ ______ the child - ask various questions of the child in order to make these determinations.
voir dire
Because ____________ is still not fully understood, and is susceptible to suggestion and planted memories, previous ____________ witnesses are often not allowed to testify.
hypnosis
hypnotized
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 ___________________.
unconstitutional
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.
regular witnesses
criminal defendant witness
Rule 605
Judges and Jurors as Witnesses
Judges and Jurors as witnesses
Rule 605
___________ and _________ are incompetent to testify in cases before them.
judges and jurors
Judges and jurors are _______________ to testify in cases before them.
incompetent
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.
- there was juror misconduct; and
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. ?
- that misconduct was the result of an “extraneous outside influence.”
___________ __________ ___________ (such as a threat or bribe, or viewing improper evidence by jurors).
extraneous outside influence
A juror cannot testify about juror misconduct resulting from ___________ _____________.
internal influences
mistaken mental impressions.
Internal Influences
alcohol or drugs consumed
Internal Influences
lack of sleep by jurors
Internal Influences
The policy is to preserve verdict stability, maintain public confidence in verdicts, and prevent later juror harassment.
A juror cannot testify about juror misconduct resulting from Internal Influences.
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.
State Dead Man Statutes
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.)
state courts
diversity cases
Rule 601 treats these state provisions as “substantive,” rather than “procedural” and so they apply in ____________ __________ under the Erie Doctrine.
diversity cases
The personal knowledge requirement
Rule 602
Rule 602
The personal knowledge requirement
A witness is qualified to testify only regarding those matters about which a witness has _____________ ____________.
personal knowledge
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
perceived
first hand
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 ___________ ___________.
reasonable opinions
A witness’s general competency to testify is limited by the scope of that witness’s ____________ ____________.
personal knowledge
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
expert testimony
The Oath or Affirmation Requirement
Rule 603
Rule 603
The Oath or Affirmation Requirement
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.
testify truthfully
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.
oath or affirmation
Are there official words the judge must use for an oath or affirmation?
No
There are no official words the judge must use, and the judge has the discretion to formulate the _______ or ____________.
oath or affirmation
Witness Examination
Rule 611
Rule 611
Witness Examination
The judge has a great deal of discretion to regulate the presentation of evidence, and witness testimony at trial. True or False?
True
Rule 611(a)
Direct Examination
Direct Examination
Rule 611(a)
Attorneys should generally ask ______ _______, ___________ ____________ who, what, when, where and why questions when examining a non-adverse/ non-hostile witness.
open ended - non-leading
Attorneys should generally ask open ended - non-leading ________, _________, _________, __________, and _______ questions when examining a non-adverse/ non-hostile witness.
who
what
when
where
why
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?
direct examination
The witness can tell the story (in a non-narrative way) supporting the party’s legal claims or defenses while building ________ and establishing ____________.
rapport
credibility
Rule 611(b) and (c)
Cross Examination
Cross Examination
Rule 611(b) and (c)
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.
direct examination
Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1. ?
2.
3.
4.
- perception of events
Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2. ?
3.
4.
- memory of events
Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3. ?
4.
- communication of the story
Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3.
4. ?
- truthfulness of the witness (either their bias, their prior inconsistent statements, and/or their character for truthfulness).
Through cross-examination, an attorney can strategically challenge the four testimonial capacities of the witness
1.
2.
3.
4.
- perception of events
- memory of events
- communication of the story and
- truthfulness of the witness
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.
leading questions
Refreshing a Witness’s Memory
Rule 612
Rule 612
Refreshing a Witness’s Memory
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.
refresh
recollection
The document is used in this moment as a _________ _______ not as a ___________ for the witness’s testimony.
memory spark
replacement
Rule 612 then allows the opposition to request production of that document for _______ ___________ purposes.
cross examination
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 _______________.
recollection
Only the testimony from the witness’s refreshed recollection is ____________.
evidence
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!!!
True!!!
