Class 5: Witnesses and Testimony - Jan. 23

Question 1

What is witness competency? (Q)

Answer 1

Witness competency is a witness’s ability to testify.

Question 2

Is the presiding judge a competent witness in the matter over which he or she is presiding? (Q)

Answer 2

No. The presiding judge is not a competent witness in the matter over which he or she is presiding. A party does not need to object to in order to preserve this issue for appeal. (FRE 605)

Question 3

May a juror testify at trial in the presence of other jurors? (Q)

Answer 3

No. A juror may not testify at trial in the presence of other jurors. A juror also may not testify about the jury’s deliberations, other than about improper outside influences or information. (FRE 606)

Question 4

Which four requirements must be met for a person to be competent to testify? (Q)

Answer 4

A person is competent to testify if the person:

(1) has personal knowledge of the facts to which he or she will testify (FRE 602),

(2) is able to relate those facts to the jury (FRE 611),

(3) gives an oath or affirmation to testify truthfully (FRE 603), and

(4) is neither a judge nor a juror in the case (FRE 605 and 606).

Question 5

The defendant was accused of murdering his wife and was prosecuted in federal court. The prosecutor called a five-year-old child as a witness. The child allegedly saw the defendant murder the wife with a knife. The child appeared intelligent and spoke clearly. In response to questions by the prosecutor, the child said he knew the difference between a truth and a lie. When asked what the clerk said to him, the child said that the clerk made the child promise to tell the truth. The defense counsel objected and argued that the witness was incompetent to testify because of his age.

Should the judge overrule on the objection? (Q)

Answer 5

Yes. The judge should overrule the objection. The child is competent to testify. There is no age at which children become competent to testify. Instead, they are subject to the same competency rules that apply to all other witnesses. Everyone is competent to be a witness, even a young child, as long as the child (1) has personal knowledge of the facts to which the child will testify, (2) is able to relate those facts to the jury, and (3) gives an oath or affirmation to testify truthfully.

Here, the child has personal knowledge of the fact that the defendant allegedly stabbed his wife, can speak clearly to communicate those facts to the jury, understands the difference between a truth and a lie, and promised to tell the truth during his testimony. The child is therefore competent to testify. Thus, the judge should overrule the objection.

Question 6

What is a hostile witness? (Q)

Answer 6

A hostile witness is generally one who has some bias against the party conducting the examination, refuses to testify, or is aligned with an adverse party. However, not all witnesses who provide unfavorable testimony are deemed hostile.

Question 7

What is direct examination? (Q)

Answer 7

Direct examination is the procedure in which a party asks questions of its own witness. Leading questions are generally not permitted on direct examination, except if (1) they are needed to develop the witness’s testimony, (2) the witness is hostile, (3) the witness is the opposing party, or (4) they inquire about preliminary or undisputed matters.

Question 8

What is cross-examination? (Q)

Answer 8

Cross-examination is the procedure by which a party examines an adverse party’s witness. Cross-examination must generally stay within the scope of the direct examination, unless a matter involves the witness’s credibility or the judge specifically permits broader examination.

Question 9

What types of questions are allowed on cross-examination? (Q)

Answer 9

Generally, cross-examination is limited to:

(1) issues affecting the witness’s credibility and

(2) the subject matter about which the witness testified on direct examination.

However, the judge can allow the attorney to ask questions on additional subjects.

Question 10

A defendant charged with bank robbery appeared in federal court. He called an alibi witness who testified on direct examination that on the day of the robbery the defendant was working for the alibi witness at the witness’s farm approximately 150 miles from the bank. On cross-examination, the prosecutor asked the alibi witness about his recent arrest for drunk and disorderly conduct. The defense attorney objected that the question was beyond the scope of the cross examination.

How should the court rule on the objection? (Q)

Answer 10

The court should sustain the objection. The question is beyond the scope of the issue explored on direct examination. Cross-examination is limited to (1) the subject matter about which the witness testified on direct examination and (2) issues of the witness’s credibility.

Here, the alibi witness testified only about the defendant’s whereabouts at the time of the robbery during direct examination. The prosecutor’s attempt to impeach the witness’s character is beyond the scope of that subject. Additionally, an arrest for drunk and disorderly conduct is not relevant to the issue of the witness’s credibility. Thus, the court should sustain the objection.

Question 11

What is a leading question? (Q)

Answer 11

A leading question is one that suggests the answer to the person being asked.

Question 12

Under what circumstances can a party ask a witness leading questions? (Q)

Answer 12

Leading questions can generally be used only

(1) on cross-examination and

(2) if a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

However, the court can allow leading questions on direct examination if they are necessary to develop the witness’s testimony. A party can use leading questions on preliminary or undisputed questions, such as a witness’s name or occupation. A party can also lead a witness who needs assistance, such as a young, scared, forgetful, or halting witness. Finally, if a party against whom a hearsay statement has been admitted calls the declarant as a witness, the party can ask any question that would be proper under cross-examination.

(FRE 611)

Question 13

May the court order a witness to leave the courtroom? (Q)

Answer 13

Yes. The court may order a witness to leave the courtroom. The court must, upon request, or may, upon its own motion order a witness to leave the courtroom so the witness does not hear the testimony of other witnesses. This rule may not be used to exclude (1) parties to the case; (2) a party’s designated representative if the party is not a natural person; (3) a person whose presence is essential to the case (e.g., an expert witness); or (4) a person statutorily authorized to be present.

If a witness cannot be excluded on account of one of these exceptions, the court may exercise its procedural powers to protect the integrity of the witness’s testimony; for example, by taking witnesses out of order or bifurcating a witness’s testimony to ensure that the witness testifies before hearing other testimony relevant to his or her testimony.

(FRE 615)

Question 14

What four types of individuals cannot be excluded from a courtroom? (Q)

Answer 14

A court cannot order the exclusion from the courtroom of:

(1) a party who is a natural person;

(2) an officer or employee who is the designated representative of a party, such as the CEO of a corporation or the lead investigating police officer;

(3) a person who is essential to a party’s claim or defense, such as an expert witness; or

(4) a person authorized by statute to be present.

(FRE 615)

Question 15

The plaintiff sued a tire company for patent infringement. The defendant hired an expert witness to testify about the methods and processes in the patent. At the start of the trial, the plaintiff moved for a sequestration order. The plaintiff argued that all witnesses, including the defense expert, must be excluded from the courtroom.

How should the court rule on the motion? (Q)

Answer 15

The court should grant the motion but not include the expert witness in that order. If requested, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. However, a judge cannot exclude a person whose presence is essential to presenting the party’s claim or defense. An expert witness can remain in the courtroom if (1) the expert’s testimony will assist with the technical aspects of the case or (2) the expert will testify based on knowledge gained from listening to other witnesses.

Here, the plaintiff requested a sequestration order, so the court must order witnesses excluded from the courtroom. However, the defendant’s expert witness should be allowed to remain as a person who is essential to presenting the technical elements of tire company’s patent infringement defense. Thus, the court should grant the motion but not include the expert witness.

Question 16

What are the four capacities a witness must possess? (Q)

Answer 16

A witness must have the capacity to:

(1) observe (FRE 602),

(2) remember what he or she observed (FRE 602),

(3) relate those memories to the jury (FRE 611), and

(4) understand the need to testify truthfully (oath) (FRE 603).

Question 17

Can a party offer extrinsic evidence in order to attack a witness’s ability to accurately observe, relate, or remember facts? (Q)

Answer 17

Yes. A party can offer extrinsic evidence in order to attack a witness’s ability to observe, relate, and remember facts.

Question 18

The defendant was charged in federal court with possession of cocaine with intent to distribute. The prosecution alleged that the defendant delivered seven kilograms of cocaine to a conspirator who was then responsible for resale. The conspirator was the principal witness against the defendant. On cross-examination, the conspirator admitted that she had been a cocaine addict for many years. The conspirator also testified that during the time the alleged sale took place she generally used cocaine three or four times per day. However, she stated that she was able to remember the events in question. The defense moved to disqualify the witness as incompetent.

How should the court rule on the motion? (Q)

Answer 18

The court should deny the motion. Witnesses must possess the ability to observe events, remember those events, relate the events to the jury, and understand the obligation to tell the truth. A witness can be impeached on the grounds that one or more of these capacities is diminished, but a diminished capacity does not make the witness incompetent or her testimony inadmissible.

Here, although the witness was under the influence of drugs for much of the key time period, she was still able to observe, remember, and relate information about the defendant delivering the drugs. The defense attorney can cross-examine the witness as to the degree to which her capacities to observe and remember might have been diminished by her drug use. The jury will then decide whether the witness’s testimony is credible. Thus, the court should deny the motion.

Question 19

In a jury trial, may the court call a witness on its own? (Merritt)

Answer 19

Yes. (FRE 614)

Question 20

In a jury trial, may the judge ask questions of one of the witnesses after the direct and cross-examination? (Merritt)

Answer 20

Yes. (FRE 614)

Question 21

How may a witness be deemed hostile? (Q)

Answer 21

To be deemed hostile, a witness must be biased against the questioning party or show some level of lack of cooperation. The presiding judge determines whether a witness is hostile. A party is permitted to knowingly call a hostile witness.

Question 22

What does FRE 602 govern? (LII)

Answer 22

FRE 602 governs the need for personal knowledge of a witness.

Question 23

What does FRE 603 govern? (LII)

Answer 23

FRE 603 governs the witnesses need to take an oath or affirmation to testify truthfully.

Question 24

What does FRE 605 govern? (LII)

Answer 24

FRE 605 governs the judge’s competency as a witness.

Question 25

What does FRE 606 govern? (LII)

Answer 25

FRE 606 governs a juror’s competency as a witness.

Question 26

What does FRE 611 govern? (LII)

Answer 26

FRE 611 governs the mode and order of examining witnesses and presenting evidence.

Question 27

What does FRE 614 govern? (LII)

Answer 27

FRE 614 governs the court’s calling or examining witnesses.

Question 28

What does FRE 615 govern? (LII)

Answer 28

FRE 615 governs the excluding of witnesses from the courtroom.