Evidence: Who may testify and what form? Flashcards
Competency
A witness must have personal knowledge of the facts or events about which she intends to testify, but need not have personal knowledge of any direct evidence (e.g., a witness who intends to testify about an admissible hearsay statement need only have personal knowledge of the statement and not the underlying event). Typically, a witness’s own statement that she saw or heard the event is sufficient for admissibility.
If a witness testifies that he lacks memory of an event, the witness’s memory may be refreshed with any document (or thing). The document need not be admissible (and is not admissible by the proponent), but may be admitted in evidence by opposing counsel. The witness may not read from the document, but should return it to the attorney before testifying with a refreshed memory.
If the document does not refresh the witness’s recollection, the witness may read it to the jury, if the document satisfies the conditions of FRE 803(5).
If a writing is used to refresh a witness’s memory while the witness is testifying, an adverse party has the right to inspect the writing. If the writing was used to refresh the witness’s memory before the witness testified, the adverse party may inspect the writing “if the court decides that justice requires it.”
To testify, the witness must take an oath (religious) or affirmation (non-religious) to tell the truth. A witness may not be impeached for failing to take a religious-based oath.
A witness must have minimal competency to testify, which means the witness knows the difference between truth and falsity and has minimal mental capacity.
Courts construe the competency rules liberally in favor of allowing witnesses to testify.
Relevance and Competency: liberally construed
Privileges: narrowly construed
Dead Man’s Act: There is no Dead Man’s Act in federal court for federal law issues. For state law issues, federal courts apply the state’s Dead Man’s Act. These acts vary significantly from state to state, but generally preclude one party from testifying about an oral transaction in a civil case if the other party is dead or insane (the Act does not apply where the dead party’s testimony is admitted as an exception to the hearsay rule).
Judges and jurors may not testify in cases over which they preside. A juror may testify to impeach a verdict, but only
(1) if the verdict was tainted by an “extraneous prejudicial source” or an “outside influence,” such as a bribe or media report,
(2) as to whether there was a clerical mistake in entering the verdict onto the verdict form, or
(3) to show that overt racial bias of a juror caused racial animus to be a significant motivating factor in the juror’s vote to convict.
Upon request, the judge shall exclude all witnesses from the courtroom, except parties (or a designated representative of a corporate or government party), crime victims, and (sometimes) testifying experts.
Expert Witnesses
Definition. An expert witness is a person whose specialized knowledge will help the jury understand the evidence.
1 Is the expert witness “qualified” to testify on the basis of education, experience, training, knowledge, and/or skill?
This is a question for the judge. Any of these bases (e.g., experience) is sufficient.
- Is the evidence relevant? That is, does the evidence assist the fact-finder in understanding the issues?
In a criminal case in which the defendant’s mental state constitutes an element of the crime (e.g., a specific intent crime) or an element of a defense (e.g., whether the defendant acted reasonably in self-defense), an expert may not state an opinion as to whether the accused did or did not have such mental state at the time of the offense. The expert may testify that the defendant suffered from a mental disease or defect and can describe the characteristics of such a condition, but cannot offer a conclusion as to whether the condition rendered the defendant incapable of appreciating the nature of his acts.
- Is the evidence reliable?
That is, has the witness applied reliable principles and methods to the facts of the case? The witness’s opinions must be based on a reasonable degree of certainty, and not mere conjecture or speculation.
- Is the basis of the expert’s testimony proper?
In addition to the expert’s own knowledge, skill, and experience and admissible evidence, an expert may base her opinion on inadmissible evidence (e.g., hearsay), as long as it is of a type reasonably relied upon by experts in the particular field. Such inadmissible evidence, however, is not independently admissible and generally may not be made known to the jury.
- Impeachment:
In addition to the impeachment methods that can be used on fact witnesses, an expert may be impeached by: (1) evidence of bias (e.g., paid to testify); and (2) learned treatises that are read to the jury if an expert (either party’s expert will suffice) testifies that the treatise is authoritative in the field.
Form of Questions and Scope of Cross-Examination: Direct examination
Type of questions: no leading questions (i.e., questions that suggest an answer–“Isn’t it true that you never saw the defendant’s car?”)
Exceptions: to refresh a witness’s recollection; to question a difficult or nervous witness; to question a hostile witness, adverse party, or person aligned with an adverse party (e.g., spouse, employee); questions related to preliminary, foundational, or background facts.
Form of Questions and Scope of Cross-Examination: Cross-Examination
Type of questions:
leading questions are generally permitted, except
(i) where an attorney’s client is called by opposing counsel as an adverse witness (and thus the attorney is cross-examining her own client); and
(ii) the cross-examiner has exceeded the scope of direct (but the court has permitted questioning to continue).
Form of Questions and Scope of Cross-Examination: Scope of the cross-examination
In federal court, the scope of cross-examination is limited to
(i) subject matters raised on direct examination; and
(ii) the credibility (i.e., impeachment) of witnesses. The court, however, has discretion to allow a cross-examiner to exceed the scope of direct examination
Opinion Evidence
A fact witness may give an opinion if it is rationally based on the witness’s perception and is helpful to the jury.
Common fact witness opinions include:
X was drunk X was about 75 years old X seemed nervous, confused, scared, etc. X was driving about 50 MPH X smelled of alcohol or gasoline X was standing about 20 feet from the intersection
A fact witness is generally prohibited from giving opinions such as:
X was negligent X is guilty X was at fault X should win X’s product was unreasonably dangerous or defective
Impeachment: Bias
A witness may be impeached with evidence of bias, interest, or partiality by inquiry on cross-exam (e.g., “isn’t it true you are the plaintiff’s brother” or “isn’t it true that you are employed by the defendant’s insurer”); the questioning attorney must have good faith basis to inquire.
Extrinsic evidence also is admissible to show the existence of bias.
Impeachment: Lack of capacity
A witness may be impeached with evidence of lack of capacity by inquiry on cross-exam (e.g., “isn’t it true that you were not wearing your glasses on the day of the accident” or “isn’t it true that you were 200 yards from the intersection”); the questioning attorney must have good faith basis to inquire.
Extrinsic evidence also is admissible to prove that the witness lacked capacity.
Impeachment: Prior inconsistent statements
A witness may be impeached with her prior inconsistent statements by inquiry on cross-exam (e.g., “isn’t it true that after the accident you told the officer that plaintiff’s light was green”); if made under oath at a hearing or deposition, the statements are admissible as substantive evidence; otherwise, the statements may be used only to impeach.
Foundation. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is, at some point in time (before or after impeachment), given an opportunity to explain or deny the prior inconsistent statement.
This foundation is not required for statements of a party-opponent or for impeaching a hearsay declarant with a prior inconsistent statement.
Extrinsic evidence is admissible unless the prior statement relates to a collateral matter
in an auto accident case, the witness testifies that D was speeding, although 2 weeks earlier she said D was not speeding (non-collateral)
in an auto accident case in which the identity of the defendant is not in issue, the witness testifies that D was driving a Ford, although 2 weeks earlier she said D was driving a Dodge (collateral)
Impeachment: Prior convictions
A witness may be impeached with his prior convictions by inquiry on cross-examination and/or extrinsic evidence (a certified copy of the record of conviction) as follows:
- There is an absolute right to impeach with veracity crimes (misdemeanors and felonies, such as perjury, larceny by trick, criminal fraud, counterfeiting, false pretenses, forgery, embezzlement, filing false reports, making false statements, and bribery) that are less than 10 years old
- For all other felonies, they may be used to impeach if their probative value outweighs prejudice to parties; the balance favors exclusion if the witness is the accused in a criminal case; for all other witnesses, the balance favors use of the conviction
- Non-veracity misdemeanors may not be used to impeach
- Convictions more than 10 years old (as measured from the date of conviction or the date of release from prison, whichever is later) are rarely allowed
- Most juvenile and pardoned convictions are not allowed; convictions on appeal are allowed
Impeachment: Prior acts of Untruthfulness
A witness may be impeached with evidence of prior bad acts by inquiry on cross-examination if the act relates to untruthfulness and the attorney has a good faith basis to believe the act occurred.
Extrinsic evidence is not allowed, even if the witness denies the bad act.
This rule bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act.
For example, a witness may be asked whether “she lied on a job application,” but the rule prohibits counsel from mentioning that the witness was “terminated from her job” because of such lies.
Impeachment: Character witnesses
A witness (“W”) may be impeached by calling a character witness (“C”) to testify as to W’s untruthfulness.
C may only testify as to W’s reputation for untruthfulness or C’s opinion as to W’s untruthfulness. C may not testify as to W’s specific instances of untruthfulness.
Rebuttal. Evidence of the truthful character of a witness is admissible only after the witness’s character for truthfulness has been attacked by (1) character witnesses, (2) prior convictions, or (3) prior acts of untruthfulness
Impeachment: Contradiction
A witness may be impeached by extrinsic evidence of contradictory facts:
where the witness’s testimony on a particular fact is a material issue in the case,
where the testimony on a particular fact is significant on the issue of credibility, or
where the witness volunteers testimony about a subject for which the opposing party would otherwise be precluded from offering evidence.
A witness may not be impeached for his or her religious beliefs (or lack thereof).
Example: Isn’t it true you don’t believe in God?
