Evidence: Witnesses

Question 1

Competency of Witness, In general

Answer 1

personal knowledge
and
Oath or affirmation

Question 2

Dead man’s statute– in general,

Answer 2

(1) witness is ordinarily incompetent merely because she has an interest — a direct legal stake– in outcome of the litigation.
(2) BUT some states have a “Dead Man’s Act.” The typical Act provides that in a civil action, an interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transaction between the interested witness and the decedent.

Question 3

Shania sued Elvis for breach of an oral K. Elvis denied that any K was made. Elvis died before trial. (a) May Shania testify to what Elvis said and did in negotiating the K? (b) May Shania’s friend Faith, who witnessed the making the K, testify to what Elvis said and did?

Answer 3

Yes!– both are competent.
On Multistate–witnesses ordinarily are not incompetent on this ground BUT if question explicitly states the particular jurisdiction in which case arises has dead man’s state–then result changes
(a) Shania is interested witness–so incompetent
(b) Faith has interest– competent (bias doesn’t disqualify her)

Question 4

Leading Questions

Answer 4

(a) Generally NOT ALLOWED on direct examination
(b) Generally ALLOWED on cross-examination
(C) But allowed on direct exam as follows:
(1) preliminary introductory matter
(2) youthful or forgetful witness
(3) hostile witness
(4) adverse party or someone under control of AP

Question 5

Writings in Aid of Oral Testimony

1. Refreshing Recollection

Answer 5

GR: witness may not read from prepared memorandum; must testify on basis of current recollection
BUT if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.

Question 6

Safeguards against abuse: Adversary has the right to

Answer 6

1. inspect the memory-refresher
2. to use it on cross-examination
3. to introduce into evidence

Question 7

Writings in Aid of Oral Testimony

2. Past Recollection Recorded (Hearsay Exception)

Answer 7

Foundation for reading the contents of writing into evidence:

1. showing writing to witness fails to jog memory
2. witness had personal knowledge at former time
3. writing was either made by witness, or adopted by witness
4. making or adoption occurred while the event was fresh in witness’s memory.
5. Witness can vouch for accuracy of writing when made or adopted.
   * basically can read to jury but can only be introduced into evidence by opponent.

Question 8

Opinion Testimony

1. Lay Witness

Answer 8

Lay opinion admissible if (1) rationally based on witness’s perception (personal knowledge) and (2) helpful to jury
Ex. drunk/sober, speed of vehicle, sane/insane, emotions of another person, odors, handwriting, character (when permitted)

Question 9

Opinion Testimony

2. Expert Witness

Answer 9

(a) Qualifications: education and/or experience
(b) Proper subject matter: scientific, technical, or other specialized knowledge that will be helpful to jury in deciding a fact. eg. an opinion is not helpful if the proposition is obvious.

Question 10

Basis of Opinion

Answer 10

Expert must have opinion based on “reasonable degree of probability or reasonable certainty”
The expert may draw upon three permissible data sources:
1. Personal knowledge (e.g. treating physician)
2. Other evidence admitted at trial (testimony by other witnesses, exhibit (medical reports, x-rays)) – made known to expert by hypothetical question
3. Facts outside the records (hearsay) if of type reasonably relied upon by experts in forming opinions.

Question 11

Relevance and Reliability

Answer 11

To be admissible, expert opinion must be relevant to the issue at hand and Sufficiently Reliable.
Four principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion – TRAP
Testing of principles and method
Rate of Error
Acceptance by others
Peer review or publication

Question 12

Learning Treatise in Aid of Expert Testimony (Hearsay Exception)

Answer 12

(1) On direct examination of party’s own expert: Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority.
(2) On cross-examination of opponent’s expert: Read into evidence to impeach and contradict opponent’s expert. Comes in as substantive evidence
(3) BUT learned treatise may not be introduced as exhibit.

Question 13

Ultimate Issues

Answer 13

Opinion testimony is objectionable just because it embraces an “ultimate issue” in the case. BUT all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful.

Question 14

Criminal Cases:

Answer 14

Ultimate issue is still proper objection if expert seeks to give direct opinion that defendant did not or did not have relevant mental state. The expert can nay testify in general terms about the effects of a defendant’s mental condition without linking it to the particular case, such a: D has schizophrenia. A person with such disease cannot distinguish fact from fantasy.

Question 15

Cross-Examination

Answer 15

Party has a RIGHT to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony.
Proper subject matter: Matters within scope of direct examination, and and matters that test the witness’s credibility

Question 16

Credibility and Impeachment in general

Answer 16

1. Bolstering Own Witness: Not allowed until AFTER witness’s credibility has attacked
   Exception: prior identification of person .. Note witness who made prior identification must testify at trial and must be subject to current cross-examination.
2. Impeachment of Own Witness: Yes can impeach without limitation – even on direct.

Question 17

Impeachment Methods

Answer 17

1. Prior inconsistent statements
2. Bias, interest, or motive to misrepresent
3. Sensory Deficiencies
4. Bad Reputation or Opinion about witness’s character for truthfulness
5. Criminal convictions
6. Bad acts that reflect adversely on witness’s character for truthfulness
7. Contradiction

Question 18

Procedure Overview: There are two possible ways to use impeachment methods:

Answer 18

1. Ask the witness about the impeaching fact with the aim of having the witness admit it (confronting the witness), or
2. Prove the impeaching fact with “extrinsic” evidence (documentary evidence or testimony from other witnesses).

Question 19

The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods:

Answer 19

ALL EXCEPT bad acts and part of contradiction (contradictory facts that are collateral)

Question 20

For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced?

Answer 20

NO except bias.

Question 21

Prior Inconsistent Statements

Answer 21

Any witness may be impeached by showing that on some prior occasion she made a material statement (orally or in writing) that is inconsistent with her trial testimony.
GR: The prior inconsistent statement is admissible only for the purpose of Impeachment
Exception: A prior inconsistent of a witness may be admitted both to impeach and as substantive evidence if the witness is currently subject to cross-examination and th prior inconsistent statement was made: orally under oath AND part of formal hearing

Question 22

Procedural issue: must witness be confronted with her prior inconsistent statement while still on stand, or may it be proven later by extrinsic evidence without such confrontation?

Answer 22

Confrontation timing is flexible: Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement. Exception:
No opportunity to explain need be given if Witness is opposing party. Also, the prior inconsistent statement of an opposing party can be used against hat party as substantive evidence (party admission or statement of an opposing party.

Question 23

In auto accident case, P testifies that she was wearing her seat belt. D does not cross-examine her. During the defense, D calls Joe the Bartender, who testifies that P told him, at Joe’s bar a week after the accident, that she had NOT been wearing her seat belt.

(a) Should P’s motion to strike be granted on the ground that P was not given an immediate opportunity to explain or deny the inconsistency?
(b) Is P’s statement admissible to impeach P AND as substantive evidence that she was not wearing her seat belt?

Answer 23

(a) Denied, No opportunity because she is opposing party (P)

(b) Yes, statement of opposing party can be used against the opposing party.

Question 24

Bias, Interest, or Motive to Misrepresent

Procedural Issue:

Answer 24

(a) A witness must be confronted with alleged bias whole on stand
(b) If confrontation prerequisite is met, then bias may be proven by extrinsic evidence?

Question 25

Sensory Deficiencies

Answer 25

Anything that could affect witness’s perception or memory. Examples; bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the witness stand. Purpose to suggest mistake
no confrontation required
extrinsic evidence allowed

Question 26

Bad Reputation or Opinion About Witness’s Character for Truthfulness

Answer 26

Any witness is subject to impeachment by this method

No confrontation required, extrinsic evidence is allowed.

Question 27

Bad Rep or Opinion Procedure

Answer 27

Call character witness to testify that Target Witness has bad reputation for truthfulness, or that character witness has low opinion of Target Witness is not telling the truth on the witness stand.
** specific acts not allowed

Question 28

Criminal Convictions

Answer 28

To suggest testimony is false. Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Question 29

Permissible types of convictions:

Answer 29

1. Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove: false state as element of crime
2. If conviction did not require proof of false statement, it MUST be a felony and court may exclude in its discretion if probative value on issue of witness creditability is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).

Question 30

Time limitation for convictions

Answer 30

The conviction or release from prison, whichever is later, generally must be within 10 years of trial. If more than 10 years the conviction may not be used for impeachment UNLESS: proponent shows probative value on credibility is substantial.

Question 31

Method of proof

Answer 31

Ask witness to admit prior conviction OR introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction.

Question 32

Inquiry about bad acts (without conviction) if they reflect adversely on witness’s character for truthfulness

Answer 32

Only permissible procedure: confrontation on cross-examination and NO extrinsic evidence permitted.
C-E must have good faith basis for inquiry and permission to make inquiry is subject to court’s discretion. Inquiry is limited to the act of untruthfulness itself, not its consequences.
Proof with extrinsic evidence may still be allowed if he bad act is relevant of some purpose other than bad character for truthfulness.

Question 33

Contradiction

Answer 33

C-E through confrontation of witness may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she had been impeached by contradiction.

Question 34

If witness sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact

Answer 34

RULE: EXTRINSIC EVIDENCE NOT ALLOWED for purpose of contradiction IF the fact at issue is collateral (i.e. if the fact has no significant relevance to the case or to the witness’s credibility).

Question 35

Rehabilitation

Answer 35

1. Showing witness’s good character for truthfulness: only when impeachment clearly suggested that your witness was lying instead of merely being mistaken– by bringing character witness for the impeached witness
2. Prior consistent statement to rebut a charge of recent fabrication: if the witness’s trial testimony is charged as recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the made before motive to fabricate arose.

Question 36

Purpose of prior consistent statement to rebut a charge of recent fabrication

Answer 36

A prior consistent statement that fits within the rules admissible to rehabilitate credibility and as substantive evidence that the prior statement was true.