Evidence AMP Set - Examination Of Witnesses, Competency And Opinion

Question 1

Which of the following is true about Dead Man Acts?

A Dead Man Acts apply to both civil and criminal cases

B Dead Man Acts exist to protect estates from perjured claims

C The Federal Rules of Evidence have adopted a version of the Dead Man Act

Answer 1

B

Dead Man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. Thus, these statutes are designed to protect estates from perjured claims. Dead Man statutes exist in many jurisdictions and their provisions vary from state to state. Although there is no Dead Man Act in the Federal Rules of Evidence, state Dead Man Acts operate to disqualify witnesses in federal cases where state law provides the rule of decision (most diversity cases). Because Dead Man Acts exist to protect estates from perjured claims, the bar to competency applies only to civil cases and has no application in criminal cases. QUESTION ID: E0024B Additional Learning

Question 2

Which of the following statements is not true regarding expert testimony?

A The witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case.

B The subject matter must be one where specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.

C The witness must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject.

D The witness must possess reasonable certainty or probability regarding his opinion.

Answer 2

A

The opinion of an expert witness may embrace the ultimate issue in the case. Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: “An opinion is not objectionable just because it embraces an ultimate issue.” 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. To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible. QUESTION ID: E0030 Additional Learning

Question 3

After a deposition has taken place, objections to the __________ of a question are waived unless made during the deposition.

A Form

B Substance

C Relevance

Answer 3

A

Failure to make a timely objection to evidence often waives any ground for objection. Objections to the form of a question, such as leading or compound questions, are waived unless made during the deposition, when counsel would have an opportunity to correct the form of the question. An objection based on a testimonial privilege should also be made during the deposition. However, in a deposition, objections as to relevance are not waived if they are not made during the deposition. Objections going to the substance of a question or answer (e.g., relevance, hearsay) can be postponed until the deposition is offered in evidence. QUESTION ID: E0034A Additional Learning

Question 4

Under most Dead Man Acts, a person with a pecuniary interest in the outcome of the litigation is:

A Competent to testify, unless she is a party to the litigation

B Competent to testify

C Incompetent to testify

Answer 4

C

Dead Man Acts generally provide that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person who stands to gain or lose by the operation of the judgment is a person “interested in the event” and is incompetent to testify; thus, a person with a pecuniary interest in the outcome of the case is incompetent to testify. This is so regardless of whether she is a party to the litigation. QUESTION ID: E0023B Additional Learning

Question 5

Under the Federal Rules, an __________ person _________ be competent to testify.

A Underage; may never

B Insane; may never

C Insane; may

Answer 5

C

An insane person, even one who has been adjudicated incompetent, may testify, provided he understands the obligation to speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute. An underage person may be competent to testify. There is no precise age at which an infant is deemed competent or incompetent to testify under oath. The competence of an infant depends on the capacity and intelligence of the particular child. This test is an individual one, to be determined by the trial judge upon preliminary examination. QUESTION ID: E0021B Additional Learning

Question 6

Which statement is true regarding a memorandum used at trial to refresh a witness’s present recollection?

A It may be offered into evidence by the adverse party.

B It must be authenticated before it is shown to the witness.

C The party using it is entitled to offer it into evidence.

D The memorandum must have been signed by the testifying witness when made.

Answer 6

A

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. 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. There is no signature requirement for a memorandum used to refresh the witness’s recollection. QUESTION ID: E0026 Additional Learning

Question 7

Dead Man Acts generally provide that a person or party interested in the event is incompetent to testify to a personal transaction or communication with:

A The deceased, when offered for any purpose

B The deceased, when offered against the representative or successors in interest of the deceased

C The representative or successors in interest of the deceased

Answer 7

B

Dead Man Acts (which vary by state) generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. Dead Man Acts protect estates from perjured claims. An interested person may always testify to facts that occurred after the death of the deceased, including communications with the representative or successors in interest of the deceased, because the protection of the rule is not needed. QUESTION ID: E0023A Additional Learning

Question 8

To admit a memorandum into evidence as a recorded recollection, the witness must first testify that:

A The memorandum is accurate

B She was not involved in the creation of the memorandum

C She remembers the facts contained in the memorandum

Answer 8

A

The foundation for receipt of a memorandum or other record into evidence must include proof that the record is accurate (i.e., the witness must vouch for its accuracy). The foundation must also include proof that: (i) The witness at one time had personal knowledge of the facts recited in the record;(ii) The record was made by the witness or was made under her direction or was adopted by the witness (i.e., she was involved in the creation of the record); (iii) The record was timely made when the matter was fresh in the mind of the witness; and(iv) The witness has insufficient recollection to testify fully and accurately regarding the event at issue. If the witness on the stand currently remembers the facts contained in the document enough to testify fully and accurately regarding the event, the record will not be admitted as evidence of a past recollection. QUESTION ID: E0027B Additional Learning

Question 9

Which of the following is generally not permissible in cross-examinations?

A Leading questions

B Questions on collateral matters

C Questions (except for those related to impeachment) that are beyond the scope of the subject matter of the direct examination

D Efforts at impeachment

Answer 9

C

The most significant restriction on cross-examination is that the scope cannot range beyond the subject matter of the direct examination. (This restriction does not apply to inquiries directed toward impeachment of the witness.) On cross-examination, leading questions are permissible, and efforts at impeachment are permissible. The cross-examiner may ask the witness about collateral matters. However, the cross-examiner is bound by the answers of the witness on such matters and cannot refute the witness’s responses by producing extrinsic evidence.QUESTION ID: E0033 Additional Learning

Question 10

Which of the following is not a foundational requirement for the admission of a memorandum as evidence of a witness’s past recollection?

A The witness at one time had personal knowledge of the facts recited in the writing.

B The writing was timely made when the matter was fresh in the mind of the witness.

C The witness currently has sufficient recollection to testify fully and accurately regarding the event at issue.

D The writing was made by the witness.

Answer 10

C

The foundation for receipt of the writing into evidence must include proof that the witness has insufficient recollection to testify fully and accurately regarding the event at issue. If the witness on the stand has sufficient recollection to testify fully and accurately regarding the event, the memorandum will not be admitted as evidence of a past recollection. The foundation must also include proof that: (i) The witness at one time had personal knowledge of the facts recited in the writing;(ii) The writing was made by the witness or was made under her direction or was adopted by the witness;(iii) The writing was timely made when the matter was fresh in the mind of the witness; and(iv) The writing is accurate (i.e., witness must vouch for the accuracy of the writing). QUESTION ID: E0027 Additional Learning

Question 11

Generally, a witness may be deemed incompetent to testify if he __________.

A has been convicted of a crime

B lacks religious belief

C has any interest in the litigation

D has no recollection of the matter

Answer 11

D

There are four basic testimonial attributes that every witness must have to some degree. These are the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully. A witness may be deemed incompetent because of an inability to recollect.The common law disqualification of certain criminals has been removed by statute in most states. But conviction of a crime may be shown to affect the credibility of the competent witness.Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, but they may also not be shown or commented upon for the purpose of affecting the credibility of a witness.The common law disqualification of interested persons or parties has been abolished in most states. The only remaining vestiges of this disqualification are the so-called Dead Man Acts.QUESTION ID: E0022 Additional Learning

Question 12

Opinion testimony by lay witnesses can be acceptable if rationally based on the perception of the witness. This applies to things the witness has:

A Seen, heard, or learned about from others

B Both seen or heard

C Seen, heard, or learned about through scientific, technical, or otherwise specialized education

Answer 12

B

In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when: (i) It is rationally based on the perception of the witness;(ii) It is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and(iii) It is NOT based on scientific, technical, or other specialized knowledge. This applies to any perceptions of the witness, including things the witness has both seen and heard. For example, a witness can testify that she recognizes a party’s handwriting because she has seen it before, or that she recognizes a party’s voice because she has heard it before. It does not apply to things learned about from others. QUESTION ID: E0028B Additional Learning

Question 13

Dead Man Acts generally provide that __________ person may not testify about a communication with the __________.

A An interested; the deceased or family members of the deceased

B Any; deceased

C An interested; deceased

Answer 13

C

Dead Man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person who stands to gain or lose by the operation of the judgment is a person “interested in the event.” Dead Man Acts protect estates from perjured claims. Dead Man Acts do not prevent testimony about communications with family members of the deceased, because those family members are still alive to rebut the testimony. QUESTION ID: E0023C Additional Learning

Question 14

A lay witness will likely be allowed to testify as to her opinion that:

A A person has typhoid fever

B The defendant seemed drunk

C Her employer directly authorized her to enter into a contract, where that is at issue in the case

D Skid marks found at the accident scene indicate that the plaintiff was speeding before the collision

Answer 14

B

Testimony about whether a person was intoxicated is likely admissible because it is based on the perception of the witness rather than on specialized knowledge.

When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.

Although testimony as to the general appearance or condition of a person is admissible, 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.

It is true that a lay witness may testify that a vehicle was going “fast,” and may even estimate the speed of a moving object if a proper foundation is laid. However, accident reconstruction is a field that requires specialized knowledge; thus, a lay witness would not be permitted to testify about the significance of skid marks at an accident scene.QUESTION ID: E0029A Additional Learning

Question 15

In certain circumstances, a judge may allow leading questions on direct examination if no objection is made.
Which of the following is not a typical circumstance where a judge will allow leading questions?

A The witness needs aid to respond because of loss of memory.

B The witness is a person identified with an adverse party.

C The witness is cooperative.

D The questions are used to elicit preliminary or introductory matter.

Answer 15

C

A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Although there are certain instances where a judge will allow leading questions if no objection is made, a judge will not allow leading questions when a witness is cooperative. A witness’s hostility, however, is a permissible reason for a judge to allow leading questions. Trial judges will usually allow leading questions on direct examination in noncrucial areas if no objection is made: (i) If used to elicit preliminary or introductory matter;(ii) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or(iii) When the witness is hostile and improperly uncooperative, an adverse party, or a person identified with an adverse party. QUESTION ID: E0025 Additional Learning

Question 16

On cross-examination, questions that __________ are __________.

A Impeach the witness; not allowed

B Are leading; allowed

C Concern collateral matters; not allowed

Answer 16

B

Parties are allowed to use leading questions on cross-examination. The cross-examiner may ask the witness about collateral matters. However, the cross-examiner is bound by the answers of the witness on such matters and cannot refute the witness’s responses by producing extrinsic evidence. Impeachment means the casting of an adverse reflection on the veracity of the witness, and cross-examination is the primary method of impeachment. QUESTION ID: E0033B Additional Learning

Question 17

Which of the following opinions of a lay witness is likely to be inadmissible?

A A person seemed cheerful.

B An object was heavy and bulky.

C A person was suffering from malaria.

D A person was intoxicated.

Answer 17

C

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. QUESTION ID: E0029 Additional Learning

Question 18

Under the Federal Rules, opinion testimony by lay witnesses is permissible if it is rationally based on the perception of the witness, as well as:

A Helpful to a clear understanding of her testimony or to the determination of a fact in issue, and based on scientific, technical, or other specialized knowledge

B The only available source of proof of the fact in issue, and not based on scientific, technical, or other specialized knowledge

C Helpful to a clear understanding of her testimony or to the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge

Answer 18

C

In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when: (i) It is rationally based on the perception of the witness;(ii) It is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and(iii) It is not based on scientific, technical, or other specialized knowledge. It need not be the only available source of proof of the fact in issue. QUESTION ID: E0028A Additional Learning

Question 19

The most significant restriction on cross-examination is that:

A The scope generally is restricted to matters brought up on direct examination

B Leading questions are not allowed

C Questions on collateral matters are not permitted

Answer 19

A

The most significant restriction on cross-examination is that the scope generally is restricted to the subject matter of the direct examination. (This restriction does not apply to inquiries directed toward impeachment of the witness.) On cross-examination, leading questions are permissible. The cross-examiner may ask the witness about collateral matters. However, the cross-examiner is bound by the answers of the witness on such matters and cannot refute the witness’s responses by producing extrinsic evidence. QUESTION ID: E0033A Additional Learning

Question 20

How old must a witness be in order to be deemed competent to testify?

A There is no precise age

B Six years old

C Seven years old

D Five years old

Answer 20

A

There is no precise age at which an infant is deemed competent or incompetent to testify under oath. The competence of an infant depends on the capacity and intelligence of the particular child. Hence, a witness may be too young at the time of the event to be able to accurately perceive what happened or to be able to remember at the time of the trial. The witness may also be too young at the time of the trial to effectively relate or communicate or appreciate the obligation to tell the truth. This test is an individual one, to be determined by the trial judge upon preliminary examination. QUESTION ID: E0021A Additional Learning

Question 21

May a lay witness testify that she recognizes a document as being written in the defendant’s handwriting?

A Yes, but only if she has seen the handwriting a minimum of three times before

B Yes, but only if a foundation is laid

C No

Answer 21

B

In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when: (i) It is rationally based on the perception of the witness;(ii) It is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and(iii) It is not based on scientific, technical, or other specialized knowledge. Under these guidelines, lay opinion is permissible and often essential to identify telephone voices and handwriting. In these instances a foundation must first be laid to show the witness’s familiarity with the voice or handwriting. However, there is no specific numerical requirement for establishing familiarity. QUESTION ID: E0029B Additional Learning

Question 22

If a witness is ___________, the judge may allow leading questions on direct examination.

A Hostile

B Cooperative

C Incompetent

Answer 22

A

A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. However, leading questions are admissible in certain situations. One of these exceptions is where a witness is hostile. Although there are certain instances where a judge will allow leading questions if no objection is made, a judge will not allow leading questions simply because a witness is cooperative. An incompetent witness should not be testifying at all. QUESTION ID: E0025B Additional Learning

Question 23

Which statement is true regarding expert testimony?

A An expert must possess “absolute” certainty or probability regarding his opinion

B An expert witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case

C An expert must possess scientific, technical, or other specialized knowledge that will help the trier of fact

Answer 23

C

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. The expert must possess reasonable certainty or probability regarding his opinion. Absolute certainty is not required. However, if the opinion of the expert is a mere guess or speculation, it is inadmissible. The opinion of an expert witness may embrace the ultimate issue in the case. Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: “An opinion is not objectionable just because it embraces an ultimate issue.” QUESTION ID: E0030B Additional Learning

Question 24

The foundational requirements for admission of a memorandum or other record under the recorded recollection exception include a showing that:

A The witness at one time had personal knowledge of the facts recited in the record

B The witness currently remembers and can testify to the facts recited in the record

C The witness has never had personal knowledge of the facts recited in the record

Answer 24

A

The foundation for receipt of the record into evidence must include proof that: (i) The witness at one time had personal knowledge of the facts recited in the record;(ii) The record was made by the witness or was made under her direction or was adopted by the witness;(iii) The record was timely made when the matter was fresh in the mind of the witness; and(iv) The record is accurate (i.e., witness must vouch for the accuracy of the record). The foundation must also include proof that the witness has insufficient recollection to testify fully and accurately regarding the event at issue. If the witness on the stand currently remembers enough to testify to the facts recited in the document fully and accurately, the memorandum will not be admitted as evidence of a past recollection. QUESTION ID: E0027A Additional Learning

Question 25

Dead Man Acts apply to:

A Homicide cases only

B Criminal cases only

C Civil cases only

D Civil and criminal cases

Answer 25

C

Dead Man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. The Acts are designed to protect estates from perjured claims. Thus, the bar to competency applies only to civil cases and has no application in criminal cases (e.g., homicide cases). QUESTION ID: E0024A Additional Learning

Question 26

Which of the following is not true as to opinions by lay witnesses?

A Lay opinion is not permissible to identify telephone voices.

B The court may require a witness to state the facts observed before stating her opinion.

C Opinion testimony by a lay witness may include the witness’s inferences.

D Lay opinion generally may not be based on scientific, technical, or other specialized knowledge.

Answer 26

A

Lay opinion is permissible and often essential to identify telephone voices and handwriting. In these instances a foundation must first be laid to show the witness’s familiarity with the voice or handwriting. The word “opinion” used in this context includes all opinions, inferences, conclusions, and other subjective statements made by a witness. In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when: (i) It is rationally based on the perception of the witness;(ii) It is helpful to have a clear understanding of her testimony or to the determination of a fact in issue; and(iii) It is not based on scientific, technical, or other specialized knowledge. The court in its discretion may require a witness to state the facts observed before stating her opinion. QUESTION ID: E0028 Additional Learning

Question 27

An objection may be either general (“I object”) or specific (“Objection, relevance”). If a specific objection is sustained, the ruling will be:

A Upheld on appeal only if the ground stated was the correct one

B Upheld on appeal if there was any ground for the objection

C Unavailable for review on appeal unless the evidence was not admissible under any circumstances for any purpose

Answer 27

A

If a specific objection is sustained and the evidence is excluded, the ruling will be upheld on appeal only if the ground stated was the correct one, unless the evidence excluded was not competent and could not be made so. If a specific objection is sustained and the evidence is excluded, the ruling will NOT be upheld on appeal if there was any ground for the objection. Rather, the ground stated must have been the correct one. If a general objection is overruled and the evidence admitted, the objection is not available on appeal unless the evidence was not admissible under any circumstances for any purpose. This rule does not apply to specific objections. QUESTION ID: E0035A Additional Learning

Question 28

Which of the following objections to deposition testimony may validly be made after the deposition?

A An objection as to relevance

B An objection to a compound question

C An objection to a leading question

D An objection based on a testimonial privilege

Answer 28

A

Failure to make a timely objection to evidence often waives any ground for objection. However, in a deposition, objections as to relevance are not waived if they are not made during the deposition. Objections going to the substance of a question or answer (e.g., relevance, hearsay) can be postponed until the deposition is offered in evidence.Objections to the form of a question, such as leading or compound questions, are waived unless made during the deposition, when counsel would have an opportunity to correct the form of the question. An objection based on a testimonial privilege should also be made during the deposition. QUESTION ID: E0034 Additional Learning

Question 29

Which of the following statements is not true regarding the competency of witnesses?

A The witness must be over the age of seven.

B An insane person may testify.

C Witnesses are generally presumed to be competent.

D Unsworn testimony may be permissible under certain circumstances.

Answer 29

A

There is no precise age at which an infant is deemed competent or incompetent to testify under oath. The competence of an infant depends on the capacity and intelligence of the particular child. This test is an individual one, to be determined by the trial judge upon preliminary examination.An insane person, even one who has been adjudicated incompetent, may testify, provided he understands the obligation to speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute. Witnesses are generally presumed to be competent until the contrary is demonstrated.The witness may be sworn by oath or affirmation. However, unsworn testimony may be permissible if the witness (e.g., a child) appreciates the obligation to tell the truth.QUESTION ID: E0021 Additional Learning

Question 30

An expert may be cross-examined concerning statements contained in a scientific publication, as long as the publication is established as reliable authority.
If the expert refuses to acknowledge the publication as reliable authority, the cross-examining party:

A May introduce the publication into evidence and send it back to the jury, regardless of the expert’s opinion about the publication’s reliability

B Has no recourse; the publication’s reliability cannot be established

C May ask the court to take judicial notice of the publication’s reliability

Answer 30

C

A publication may be established as reliable by: (i) The direct testimony or cross-examination admission of the expert, (ii) The testimony of another expert, or (iii) Judicial notice. Thus, even if the expert refuses to recognize the text as authoritative, it can be used on cross-examination if its reliability is established by one of the other methods. Statements from an established treatise may be read into the record as substantive evidence. However, the relevant portion is NOT introduced into evidence and sent back to the jury; the jury never sees it. QUESTION ID: E0032B Additional Learning

Question 31

Which of the following statements about the basis of expert testimony is true?

A An expert may not give opinion testimony on direct examination without disclosing the basis of the opinion

B An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence

C An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel

Answer 31

C

An expert’s opinion may be based on the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question. Under Federal Rule 703, the expert may base an opinion on facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied on by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. QUESTION ID: E0031A Additional Learning

Question 32

Which of the following attributes may make a witness incompetent to testify?

A Interest in the outcome of the litigation

B Lack of memory about the matter

C Conviction of a felony

Answer 32

B

There are four basic testimonial attributes that every witness must have to some degree. These are the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully. A witness may be deemed incompetent because of lack of memory about the matter. The common law disqualification of those convicted of a felony has been removed by statute in most states. But conviction of a crime may be presented to impeach the credibility of the competent witness. The common law disqualification of persons or parties interested in the outcome of the litigation has been abolished in most states. The only remaining vestiges of this disqualification are the so-called Dead Man Acts. QUESTION ID: E0022A Additional Learning

Question 33

A memorandum used by a party at trial to refresh a witness’s present recollection:

A Is usually read by the witness while testifying

B Is then introduced into evidence by the party using it

C Need not be authenticated

D Is considered an exception to the hearsay rule

Answer 33

C

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.QUESTION ID: E0026A Additional Learning