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).
Criminal: character evidence general rule
Generally not admissible unless D opens the door.
Criminal: defendant’s character
D can introduce pertinent trait of his character using reputation/opinion evidence.
Criminal: prosecution’s option once D introduces his good character
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.
Criminal: victim’s character
D can introduce victim’s character trait relevant to defense using reputation/opinion evidence.
Criminal: victim’s character evidence, limitation for sexual misconduct
Limitation (rape shield rule): cannot use character evidence of victim’s sexual behavior/predisposition in any proceeding involving sexual misconduct.
Criminal: prosecution’s options once D introduces victim’s character
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
Criminal: using specific instances of conduct to prove action in conformity
General rule
exception
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)
Admissibility of evidence of prior acts, generally
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)
Admissibility of evidence of prior acts to prove action in conformity:
D’s prior sexual conduct
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.
Habit evidence
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
Using juvenile conviction to attack a witness character: civil cases
never admissible (even if it was a crime of fraud/dishonesty).
Using juvenile conviction to attack a witness character: criminal cases
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.
Can Prosecutor ask D’s character witness about D’s prior arrest?
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.
Bolstering witness credibility:
May not bolster unless the witness’s character for truthfulness has been attacked.
© impeaching witness for bias does not attack witness character for truthfulness
Witness’s religious beliefs
not admissible to attack witness character for truthfulness, but admissible to prove witness’s bias or self-interest. FRE610
