Evidence- Witness

Question 1

Can you bolster your own witness (e.g. by introducing a a prior consistent statement)?

Answer 1

No, until witness’s credibility has been attacked.

Question 2

Can you impeach your own witness?

Answer 2

Yes, without limitation

Question 3

What are the impeachment methods?

Answer 3

• prior inconsistent statements
• prior misconduct that reflects untruthfulness
• prior convictions
• character for truthfulness
• contradiction
• bias
• sensory deficiency

Question 4

When are prior inconsistent statements allowed?

Answer 4

to impeach witness:
whenever

as substantive evidence: if made under oath and as part of a formal proceeding (depo/trial/etc.)

Question 5

When is confrontation/extrinsic evidence allowed for prior inconsistent statements?

Answer 5

Confrontation: flexible; witness must be given chance to explain or deny at some point, but not before offering extrinsic evidence (*unless witness is opposing party)

Extrinsic Evidence: allowed, as long as witness gets chance to explain or deny it and adverse party can also examine witness about it.

Question 6

When is bias allowed to impeach witness?

Answer 6

to suggest testimony is biased

Question 7

When is confrontation required/extrinsic evidence allowed for bias?

Answer 7

Confrontation: within court’s discretion

Extrinsic Evidence: court has discretion even if witness admits bias

Question 8

When is confrontation required/extrinsic evidence allowed for sensory deficiencies?

Answer 8

Confrontation: not required

Extrinsic Evidence: yes

Question 9

When is contradiction allowed to impeach witness?

Answer 9

to show that witness made a mistake/lied during prior testimony

Question 10

When is extrinsic evidence allowed for contradiction?

Answer 10

• if fact at issue during contradiction is collateral, then no extrinsic evidence
• if fact at issue during contradiction is substantive, then extrinsic evidence is allowed

Question 11

When is challenging witness’s character for truthfulness allowed to impeach witness?

Answer 11

Reputation or opinion testimony by another witness.

*NOT specific facts or instances

Question 12

When is confrontation required/extrinsic evidence allowed for challenging witness’s character for truthfulness?

Answer 12

Confrontation: not required

Extrinsic Evidence allowed: yes

Question 13

When can criminal convictions be used to impeach a witness?

Answer 13

• Conviction must be within 10 years of testimony and not a juvenile
• any crime (felony or misdemeanor) involving dishonesty or false statement; no discretion to exclude
• other felonies that don’t involve fraud or dishonesty (but not misdemeanors) and court has discretion to exclude

Question 14

When is confrontation required/extrinsic evidence allowed for impeaching witness by criminal conviction?

Answer 14

Confrontation: not required

Extrinsic Evidence:

• ask witness to admit prior conviction
• introduce record of conviction

Question 15

What is the effect of a pardon on whether criminal conviction can be used to impeach witness?

Answer 15

Conviction cannot be used if:

(a) pardon was based on finding of rehabilitation and no further felonies have been committed; or
(b) pardon was based on finding of innocence.

Question 16

When is confrontation required/extrinsic evidence allowed for prior bad acts that reflect untruthfulness?

Answer 16

Confrontation: required and must be on cross-examination

Extrinsic evidence: none permitted; can only ask witness

Question 17

How can you attack the credibility of a hearsay declarant?

Answer 17

By any of the same methods used to impeach a witness

Question 18

What are the ways you can rehabilitate a witness?

Answer 18

• Showing witness’s good character for truthfulness

- prior consistent statements

Question 19

When is showing witness’s good character for truthfulness allowed to rehabilitate witness?

Answer 19

ONLY when opponent attacked witness’s character (either through reputation/opinion testimony; convictions; prior misconduct involving untruthfulness)

Question 20

How is showing witness’s good character for truthfulness allowed to rehabilitate witness?

Answer 20

character witness provides reputation or opinion testimony about witness’s good character for truthfulness

Question 21

When are prior consistent statements allowed to rehabilitate witness?

Answer 21

• witness charged with fabrication based on a recent motive and statement was made before the motive arose

OR

• statement rehabilitates a witness impeached on another ground
• BONUS: prior consistent statements admissible to rehabilitate are also admissible as substantive evidence (hearsay exclusion)

Question 22

What are the two basic requirements for witness competency?

Answer 22

• personal knowledge

- take oath or affirmation that they will tell the truth

Question 23

Is witness incompetent because she has a direct interest in the litigation?

Answer 23

No

Except for dead man’s statute (not presumed on MBE unless stated): in a civil action, interested party can’t testify in their own interests against a dead person concern communications/transactions between interested party and decedent.

Question 24

What are leading questions?

Answer 24

form of question suggests answer

e.g. “Isn’t it a fact that…?” or unbalanced alternatives

Question 25

Are leading questions allowed?

Answer 25

Cross-Examination: generally allowed

Direct Examination: generally not allowed unless:

(a) introductory
(b) forgetful witness
(c) hostile witness
(d) adverse party

Question 26

What is the right to cross-examination and what is its scope?

Answer 26

Right:

Each party has a right to cross-examine opposing witnesses who testify.

Scope:

(a) matters within scope of direct examination (only issues that brought up during cross examination; or
(b) matters that test witness’s credibility

Question 27

Can witness read from a prepared memo?

Answer 27

No, he must testify on basis of current recollection.

BUT, if witnesses memory fails him, he may be shown a memo (or any tangible item) to jog his memory (refreshing recollection).

Question 28

When can document be read as witness testimony (past recorded recollection instead of a refreshing)?

Answer 28

Recorded recollection (hearsay exception)

Requirements:

(1) showing doc failed to jog memory
(2) witness had personal knowledge at former time
(3) document made/adopted by witness when it was fresh in mind
(4) witness can vouch for accuracy

Question 29

When are lay witnesses (not based on specialized knowledge) admissible?

Answer 29

• personal knowledge

- helpful to decide a fact

Question 30

What are the proper factual bases of opinion for expert witnesses?

Answer 30

(a) personal knowledge (e.g. treating dr);
(b) other evidence in trial records (e.g. medical exhibits, other testimony)
(c) facts outside record if type reasonably relied on by experts in the field (need

Question 31

How do you determine the reliability of expert opinion (court serves as gatekeeper)?

Answer 31

1. Relevance and reliability (expert has specialized knowledge applicable to the case and the knowledge is scientifically sound)
2. qualifications (special knowledge and qualifications)
3. reasonable probability (expert must be reasonably probable in her opinion and not just guessing or speculating)
4. whether the opinion is based on a proper factual basis (see other slide)

Question 32

When can treatise be introduced in evidence (“learned treatise” hearsay exception”)?

Answer 32

On direct examination: relevant portions read into evidence by expert if established as reliable (but can never be introduced as an exhibit, just read into evidence).

On cross-examination: read into evidence to impeach and contradict opponent’s expert

Question 33

Can opinion testimony (expert or lay) address an ultimate issue in the case (e.g. X was drunk, insane)

Answer 33

Yes, but it should be helpful shouldn’t just be a rehash of the relevant law.

Unless

in criminal cases, expert cannot give opinion as to whether D did or did not have relevant mental state (e.g. D’s insanity prevented him from understanding he was shooting at a human being)

Question 34

Can a presiding judge or juror testify as a witness?

Answer 34

A judge or juror may not testify as a witness.

Question 35

During an inquiry into the validity of a verdict or indictment, can a juror testify about what happened during deliberations or why he voted a certain way?

Answer 35

Generally no, except:

(a) whether improper extraneous prejudicial information or outside influence was brought to jury’s attention;
(b) whether there was a mistake on jury verdict form; or
(c) clear statement of racial animus or stereotyping

Question 36

What are improper questions to a witness?

Answer 36

• misleading
• compound (single answer to more than one question)
• argumentative
• duplicative

Question 37

If recollection is refreshed (vs. recollection recorded) while witness is on stand, what can other party do?

Answer 37

If witness is on stand, other party is entitled to have the writing produced, cross-examine the witness on it, and have the relevant parts (*of the cross-examination, not the document unless it is introduced by opposing party) introduced into testimony.

If recollection is refreshed before witness is on stand, then other party is entitled to it only if court decides justice so requires.

Question 38

Is opinion testimony allowable by a lay witness?

Answer 38

Generally not unless it is helpful to clear up his own testimony and not based on specialized knowledge

Question 39

What is the scope of cross-examination of witnesses?

Answer 39

limited to

• scope of direct examination (including inferences drawn from it)
• impeachment

Question 40

What two ways are witnesses impeached?

Answer 40

• cross examination confrontation (eliciting facts from witness that discredit his own testimony)
• extrinsic evidence (calling other witnesses or introducing documents that prove impeaching facts)

Question 41

How can a witness be rehabilitated?

Answer 41

• explanation of inconsistencies on redirect
• reputation/opinion testimony of another witness when the witnesses reputation for truthfulness is attacked
• prior consistent statements

Question 42

When must an objection be made to a question asked to a witness?

Answer 42

After the question, but before the answer.

If not done so, a motion to strike must be made as soon as the answer is inadmissible.

• failure to object or make a motion to strike at the proper time waives the objection and the inadmissible question/answer is waived.

Question 43

How are general and specific objections to a question to a witness ruled on appeal?

Answer 43

General objection (without stating specific reason): sustained objection upheld if the objection was valid for any reason. Overruled objection upheld unless the evidence was not admissible for any reason.

Specific objection: sustained objection only upheld if the specific reason for the objection was valid≥

Question 44

What is the rule of completeness?

Answer 44

when part or all of a writing or recorded statement is introduced into evidence, adverse party may require the introducing party to put forth any other part or related writing/statement that ought to be considered

Question 45

What is “opening the door”?

Answer 45

If a party introduces evidence on a specific subject, it assets the relevance of that subject and can’t complain about the other party offering evidence on the same subject.

Question 46

What should a party do if they believe evidence was wrongfully excluded?

Answer 46

Make an offer of proof. Discloses the nature of the evidence and tries to persuade a judge why it should be admitted and also preserves the issue for appeal.