Evidence-Character, Witness

Question 1

Witness competence

Answer 1

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

Question 2

Competency of a juror as a witness

general rule

exception

Answer 2

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

Question 3

Lay witness opinion testimony

Answer 3

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

Question 4

Expert witness opinion testimony

Answer 4

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)

Question 5

Expert witness definition

Answer 5

one who possesses special knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation.

Question 6

Basis of expert’s opinion testimony:

Answer 6

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.

Question 7

Experts cannot testify on

Answer 7

• witness credibility or

- criminal D’s requisite mental state

Question 8

Device used to refresh witness memory

Answer 8

• Present recollection refreshed

- Past recollection recorded

Question 9

Past recollection recorded:

Answer 9

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

Question 10

Present recollection refreshed:

Answer 10

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)

Question 11

Impeachment (3 ways to show):

Answer 11

truthfulness
bias
sensory incompetence

Question 12

Impeachment of hearsay declarant

Answer 12

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.

Question 13

Character for truthfulness/credibility: may attack with

Answer 13

(1) reputation/opinion testimony
(2) specific acts on cross exam;
(3) prior conviction; and
(4) prior inconsistent statements.

Question 14

Using specific instances of conduct to attack witness character for truthfulness

Answer 14

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.

Question 15

Using criminal conviction to attack witness character for truthfulness

Answer 15

subject to 10 year restriction, may use

• Conviction of any crimes involving dishonesty or false statement
• Conviction of serious felonies (death or 1+ imprisonment)

Question 16

Limitations on using evidence of witness conviction of serious felonies

Answer 16

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)

Question 17

using 10+ year-old convictions to attack witness character

Answer 17

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

Question 18

Using prior inconsistent statement to attack witness character–using extrinsic evidence

Answer 18

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.

Question 19

Impeaching witness by showing bias–using extrinsic evidence

Answer 19

Extrinsic evidence is admissible to show witness is biased

Question 20

Impeaching witness by showing sensory incompetence–using extrinsic evidence

Answer 20

Extrinsic evidence is admissible to show witness is physically or mentally impaired

Question 21

3 ways of rehabilitation of a witness

Answer 21

(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,

Question 22

Civil: Character evidence general rule

Answer 22

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.

Question 23

Civil: Character evidence exception rule

Answer 23

character evidence is admissible if character is an essential element of a claim or defense. (e.g. defamation, negligent hiring/entrustment, child custody)

Question 24

Civil: using specific instances of conduct to prove character

Answer 24

admissible in civil cases when character is an essential element, or for MIMIC (non-propensity purpose).

Question 25

Criminal: character evidence general rule

Answer 25

Generally not admissible unless D opens the door.

Question 26

Criminal: defendant’s character

Answer 26

D can introduce pertinent trait of his character using reputation/opinion evidence.

Question 27

Criminal: prosecution’s option once D introduces his good character

Answer 27

Once raised by D, prosecutor can
(1) attack D’s character using reputation/opinion evidence AND/OR

(2) can cross examine D’s character witness and ask about D’s reputation, opinion, or specific acts.

for purposes of testing the witness’s knowledge of D’s reputation for honesty, Prosecutor can ask W about D’s arrest history.

Question 28

Criminal: victim’s character

Answer 28

D can introduce victim’s character trait relevant to defense using reputation/opinion evidence.

Question 29

Criminal: victim’s character evidence, limitation for sexual misconduct

Answer 29

Limitation (rape shield rule): cannot use character evidence of victim’s sexual behavior/predisposition in any proceeding involving sexual misconduct.

Question 30

Criminal: prosecution’s options once D introduces victim’s character

Answer 30

Prosecutor can

(1) rebut with V’s good character evidence; AND/OR
(2) show D has the same trait that victim is accused of having

© Can introduce V’s peaceful character if D says V initial aggressor

Question 31

Criminal: using specific instances of conduct to prove action in conformity

General rule

exception

Answer 31

Prior acts are not admissible to prove that D acted in conformity

© MIMIC
© D can use prior acts to prove character if character is an essential element of the crime or defense. FRE 405(b)

Question 32

Admissibility of evidence of prior acts, generally

Answer 32

Specific instances of conduct are generally NOT admissible in either civil or criminal cases. © character is an essential element, or for MIMIC (non-propensity purpose).

Prior acts can be used to show

(1) motive (motive, opportunity)
(2) intent (intent, knowledge)
(3) absence of mistake
(4) identity
(5) common plan or scheme (preparation, plan)

Question 33

Admissibility of evidence of prior acts to prove action in conformity:
D’s prior sexual conduct

Answer 33

In criminal or civil case where D is accused of committing sexual assault or child molestation evidence of D’s past related conduct are admissible.

Question 34

Habit evidence

Answer 34

Evidence of routine regular, or semi-automatic specific practice of a person or org. can be used to prove conduct in conformity.

Look for words such as: always, automatically, regularly

Question 35

Using juvenile conviction to attack a witness character: civil cases

Answer 35

never admissible (even if it was a crime of fraud/dishonesty).

Question 36

Using juvenile conviction to attack a witness character: criminal cases

Answer 36

can use to impeach a witness (NOT DEFENDANT) only if

(a) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and
(b) admitting the evidence is necessary to fairly determine guilt or innocence.

Question 37

Can Prosecutor ask D’s character witness about D’s prior arrest?

Answer 37

yes, for purposes of testing the witness’s knowledge of D’s reputation for honesty, Prosecutor can ask W about D’s arrest history.

In criminal AND civil cases, when a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.

Question 38

Bolstering witness credibility:

Answer 38

May not bolster unless the witness’s character for truthfulness has been attacked.

© impeaching witness for bias does not attack witness character for truthfulness

Question 39

Witness’s religious beliefs

Answer 39

not admissible to attack witness character for truthfulness, but admissible to prove witness’s bias or self-interest. FRE610