Evidence Flashcards
May a memorandum to refresh recollection be used as evidence?
Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.
Unlike the adverse party, the party using a memorandum to refresh the witness’s recollection has no right to offer it into evidence.
Does a memorandum used to refresh recollection need to be authenticated?
When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated.
The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness’s recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness’s recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception
Recorded recollection / Exception to hearsay - Admission as Evidence?
Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury.
Lay witness - Admissible opinions
Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert.
Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.
Expert opinion - Admission requirements
Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.
This test of assistance to the trier of fact subdivides into two requirements:(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.
Extrinsic evidence - Bad acts / Specific acts not permmited
Extrinsic evidence (e.g., calling another witness or introducing a record) of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination.
A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
Bad acts / Acts of misconduct - As evidence
Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief.
Bad acts - Inquiry / Probative for truthfulness
Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court.
Thus, the court may allow such inquiry, but because it is discretionary with the court, “must” is a wrong choice.
Impeachment - Specific Act - Character
Under Federal Rule 608(b), subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying).
A conviction of a crime is not necessary under this rule. Cheating on one’s taxes is lying, so this would be a specific act of misconduct reflecting on the brother’s character for truthfulness.
