Competency and Examination of Witnesses

Question 1

Requirements for All Witnesses

Answer 1

1. Have personal knowledge (except for experts)
   
   1. Perception
   2. Memory
   3. Communication
2. Take oath or affirmation
   
   1. Demonstrate an appreciation of the obligation to tell the truth, and
   2. Take an oath or affirmation to tell the truth

Question 2

Cross-Examination

Answer 2

• Party has absolute right to cross-examine a witness who testifies live.
• If a witness refuses to answer questions on cross, the direct exam must be stricken

Question 3

Scope of Cross-Examination

Answer 3

1. Cross should not exceed the scope of direct. May cross examine on:
   
   1. Issues raised on direct
   2. Issues of credibility

Question 4

Leading Questions

Answer 4

1. Question is leading when the form of the Q suggests an answer
   
   1. “isn’t it true…”
2. Generally not allowed on direct exam, but are allowed on cross. Almost all lawyers will use only leading Qs on cross
3. BUT are allowed on direct:
   
   1. To establish preliminary metters
   2. Where the witness has some challenge (old/young/can’t speak English)
   3. Hostile witness

Question 5

Use of a writing to aid testimony

Refreshing recollection

Answer 5

Basic rule: cannot have witness read from memo. Must testify based on current recollection. But if he cant recall, you can use anything to jog the memory.

Question 6

Refreshing recollection

opponent’s options

Answer 6

1. If you use something to refresh, opponent is entitled to inspect and offer it into evidence.
2. If refreshing happens before the testimony, the judge decides whether the opponent can do this.

Question 7

Scope of Refreshing Recollection Documents

Answer 7

1. ANYTHING can be used to refresh a recollection. Doesn’t have to be authenticated, doesn’t need to comply with BER, and can be hearsay
   
   1. e.g. can show officer police report
2. Cannot have wit. read from memo, though. You have to give it to him, he has to see it for a couple seconds, and you take it away.

Question 8

Entering Refreshing Recollection Documents Into Evidence

Answer 8

You cannot enter refreshing material into evidence but opposing party can

Question 9

Past Recorded Recollection

Foundation Requirements

Answer 9

1. Witness once had personal knowledhe of the facts in the document
2. Witness now cannot recall well enough to testify fully and accurately
3. Doc was either made or adopted by witness
4. Making or adoption occurred when event was fresh in wit’s memory
5. Witness can vouch for accuracy of the document when made or adopted

Question 10

Opinion Testimony-Lay Witness Rule

Answer 10

1. Generally not admissible
2. Opinion admissible if:
   
   1. Rationally based on their own perception (personal knowledge)
   2. Assists the jury in deciding the facts, and
   3. Not based on scientific, technical, or otherwise specialized knowledge (that’s for experts)

Question 11

Opinion Testimony- Some Proper Subjects of Lay Opinion

Answer 11

1. Drunk/sober
2. Speed of car
3. Sane/insane (has to be someone close/related to person)
4. Emotions of another person
5. Handwriting

Question 12

Opinion Testimony

Expert Witness Qualifications

Answer 12

1. Education
2. Training
3. Experience

Question 13

Opinion Testimony- Expert Witness Proper Subject Matter

Answer 13

• Scientific, technical, or specialized knowledge that will assist the trier of fact

Question 14

Opinion Testimony

Expert Witness Basis of opinion

Answer 14

1. Expert must have opinion to a reasonable degree of probability with three bases:
   
   1. Personal knowledge
   2. Other evidence made known to expert at or before the hearing
   3. Facts outside the record (incl. inadmissible. Hearsay) if of a type reasonably relied upon by experts in the field
      
      1. But, experts cannot testify as to the content of the facts. They can just say they relied on it.

Question 15

Opinion Testimony

Expert Witness Basis of opinion

VA Distinction

Answer 15

• Expert may rely on: Facts she personally knows, or Facts in evidence.
• Unlike in fed ct, the expert cannot rely on facts outside her personal knowledge that are not in evidence, even if the facts are of a type reasonably relief on by experts in the field.

Question 16

Opinion Testimony

Expert Witness Reliability

Answer 16

1. Expert opinion must be sufficiently reliable
2. Factors include:
   
   1. Whether the theory or scientific technique has been tested
   2. Whether subject to peer review and publication
   3. The known potential error rate
   4. Whether it is generally accepted in the scientific community

Question 17

Opinion Testimony

Expert Witness

Ultimate Issue Rule

Answer 17

1. Expert may testify as to the ultimate issue
   
   1. Exception: in a criminal case, an expert may not state an opinion as to whether the accused had a mental state at issue (e.g. intent or duress)

Question 18

Ultimate Issue VA Distinction

Answer 18

Prohibited in criminal cases.

Question 19

Opinion Testimony- Expert Witness Pneumonic

Answer 19

1. To be admitted, expert’s testimony must be GRREAT:
   
   1. G: trial ct acts as Gatekeeper
   2. R: Reliable method is used by expert (tested, peer review, error rate, etc…)
   3. R: Relevant
   4. E: evidence that will
   5. A: Assist the
   6. T: trier of fact (the evidence fits the facts of the case)

Question 20

Opinion Testimony

Learned Treatise in examination of expert witness

Answer 20

1. LT may be relied upon by an exper during direct or impeachment on cross.
2. Once established as reliable authority, it can also be admitted as substantive evidence (for the truth of what it asserts)
3. But, the treatise may not be offered in as an exhibit, just read into the record

Question 21

Opinion Testimony

How to lay foundation for a learned treatise

Answer 21

1. Judicial notice
2. Opponent’s expert on the stand says it’s a learned treatise
3. Your own expert
4. Stipulation

Question 22

Learned Treatise VA distinction

Answer 22

Only admissible to impeach the expert; not admissible as substantive evidence (no hearsay exception in criminal cases)

Question 23

VA Dead Man Statute (no federal equivalent)

Answer 23

An adverse or interested party can testify against a deceased/otherwise incapable person or their estate; however, the restomony mustbe corroborated by other evidence. A judgement cannot be entered in favor of the adverse or interested party based on the partys uncorroborated testimony.

Question 24

VA Dead Man Statute Hearsay Exception for Decedent’s Statements

Answer 24

To make sure the decedents voice is also heard, VA recognizes a hearsay exception for statements made by a person who is incapable of testifying if the declarant or her estate is a party in the case and the statement was made while the declarant was capable. Exception does not apply is the declarant is unable to testify due to a self-inflicted injury