Evidence-Character, Witness Flashcards
Witness competence
Anyone can testify if they have ∑
(a) have personal knowledge
(b) can appreciate the obligation to tell the truth and
(c) take an oath.
© state law limit on children, dead man’s statute
Competency of a juror as a witness
general rule
exception
A juror may not testify in an inquiry into the validity of a verdict as to what happened in the jury room
© Juror can testify
(1) whether extraneous, prejudicial information (e.g. inadmissible evidence) was brought to attention,
(2) outside influence,
(3) clerical/technical error, or
(4) racial bias in convicting D
Lay witness opinion testimony
A lay witness can testify about his opinions if ∑3:
(a) based on his perception and
(b) helpful to a clear understanding of his testimony or determination of a fact; and
(c) not based on scientific, technical, or specialized knowledge
Expert witness opinion testimony
A qualified expert witness can testify if ∑3
(a) RELEVANT (will help jury understand the evidence OR to determine a fact in issue);
(b) RELIABLE (testimony is based on (1) sufficient facts/data and is the product of (2) reliable principles and method that the expert (3) reliably applied to those facts); and
(c) RELATED (opinion is related to the expert’s field of expertise)
Expert witness definition
one who possesses special knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation.
Basis of expert’s opinion testimony:
Expert witness may base its opinion on
(1) personal observation of facts and data;
OR
(2) information reasonably relied upon in that particular field.
When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject.
Experts cannot testify on
- witness credibility or
- criminal D’s requisite mental state
Device used to refresh witness memory
- Present recollection refreshed
- Past recollection recorded
Past recollection recorded:
A memorandum/record about a matter that
(1) witness once had knowledge of but now has insufficient recollection of to testify, and
(2) the record was made/adopted by witness when matter was fresh in witness’s memory and
(3) accurately reflects witness knowledge.
Witness may read the record to jury/Either party can read into evidence
Only adversary can introduce the record into exhibit
Present recollection refreshed:
A witness may examine any item to refresh his present recollection
Witness may NOT read from the document.
Adversary can inspect, cross-examine. Only adversary can introduce the record into evidence (exhibit)
Impeachment (3 ways to show):
truthfulness
bias
sensory incompetence
Impeachment of hearsay declarant
Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked by
- any evidence that would be admissible if the declarant had testified as a witness.
- any inconsistent statement, even a hearsay statement, made by the hearsay declarant.
Character for truthfulness/credibility: may attack with
(1) reputation/opinion testimony
(2) specific acts on cross exam;
(3) prior conviction; and
(4) prior inconsistent statements.
Using specific instances of conduct to attack witness character for truthfulness
Inquiry:
May ask about witness’s own specific conduct on cross-examination if (a) it is probative of the truthfulness or untruthfulness of the witness and (b) have a reasonable basis for those questions.
© exclude if prejudice substantially outweigh probative value (403)
Extrinsic evidence:
Extrinsic evidence other than prior conviction is generally inadmissible to show specific prior instances of witness’s conduct relating to truthfulness.
*when witness denies such specific conduct, extrinsic evidence is NOT admissible.
Using criminal conviction to attack witness character for truthfulness
subject to 10 year restriction, may use
- Conviction of any crimes involving dishonesty or false statement
- Conviction of serious felonies (death or 1+ imprisonment)
Limitations on using evidence of witness conviction of serious felonies
If witness is not a criminal D, evidence may be excluded if prejudice substantially outweighs probative value (403)
When impeaching criminal D, evidence is admissible only if probative value outweighs risk of prejudice (reverse 403)
using 10+ year-old convictions to attack witness character
To use convictions 10+ years old:
(a) probative value must substantially outweigh risk of prejudice (super reverse 403); AND
(b) give reasonable advance notice to the opposing party
Using prior inconsistent statement to attack witness character–using extrinsic evidence
Prior inconsistent statement that is nonhearsay can only be used to impeach the declarant, but not as substantive evidence unless the declarant made that statement under oath.
May use extrinsic evidence if (a) witness has chance to explain and (b) an adverse party is given an opportunity to examine the witness about it
© No need to give him a chance if statement impeaches a hearsay declarant or qualifies as an opposing party’s statement.
Impeaching witness by showing bias–using extrinsic evidence
Extrinsic evidence is admissible to show witness is biased
Impeaching witness by showing sensory incompetence–using extrinsic evidence
Extrinsic evidence is admissible to show witness is physically or mentally impaired
3 ways of rehabilitation of a witness
(1) chance to explain on redirect examination
(2) if attacked for lying, introduce prior consistent statement,
(3) if witness’s character is attacked, reputation/opinion evidence of character,
Civil: Character evidence general rule
Character evidence cannot be used to show that someone acted in conformity on a particular occasion
© may be offered for a different purpose.
Character evidence for propensity purposes inadmissible even if it’s about a person who’s not a party or a witness. Even if hearsay exception applies, character evidence can be improper.
Civil: Character evidence exception rule
character evidence is admissible if character is an essential element of a claim or defense. (e.g. defamation, negligent hiring/entrustment, child custody)
Civil: using specific instances of conduct to prove character
admissible in civil cases when character is an essential element, or for MIMIC (non-propensity purpose).
