Evidence - Witnesses Flashcards
What are the two requirements for a witness to testify?
(a) Personal knowledge
(b) Oath or Affirmation
Is a witness incompetence because they have an interest (direct legal stake) in the outcome of the litigation?
No, but they are subject to impeachment.
What is a dead man’s statute and does Mass or the FRE apply it?
Dead Man’s statute - In a civil action, an interest witness is incompetent to testify against the estate of a descendant concerning a person transaction or communication between the interest witness and the decedent.
MBE and MA don’t have dead man statutes. However, MA has a special hearsay exception for statements made by decedents which helps achieve “adversarial balance.
Can Leading questions be used on direct examination? (General Rule and Exceptions)
Leading Q’s generally not allowed on direct examination of witness.
Exceptions:
(1) Preliminary Introductory Matters
(2) Youthful or forgetful witness
(3) Hostile witness
(4) Adverse Party or under control of opposing party [presumed hostile]
Can leading questions be used on cross-examination of witness?
Yes - Generally allowed
How may a party use a writing to refresh a witness’ recollection?
General Rule: Witness may not read from prepared memorandum, must testify on basis of current recollection.
BUT if W’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
What are the safeguards that prevent abuse of refreshing a W’s reflection?
Adversay has right to
(1) to inspect the memory-refresher
(2) to use it on cross-examination
(3) to introduce it into evidence
When may a witness read the contents of writing to the jury? [Past Recollection Recorded - Hearsay Exception]
Foundational elements:
(1) Showing writing to the jury 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 the witness’ mind;
(5) witness can vouch for accuracy of writing when made or adopted.
When is lay witness testimony admissible? [Two requirements]
Admissible if:
(1) Rationally based on W’s perception; [Personal knowledge]; AND
(2) Testimony is Helpful to the jury [Judge’s discretion.]
Examples of permissible lay opinion: Drunk/sober, vehicle speed, sane/insane, emotions
Massachusetts distinction on Lay Opinion of Sanity
Lay witness may not give direct opinion of a person’s sanity: may only describe observations of the person’s speech and conduct.
Exceptions: Attesting lay witness to a Will may give direct opinion of testator’s sanity at the time of execution of the Will.
How does a W qualify as an expert witness and what is proper subject matter for testimony?
Qualifications:
(1) Education and/or
(2) Experience
Subject matter: Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact. An opinion is not helpful if the proposition is obvious.
What must an expert opinion be based on?
A “reasonable degree of probability or reasonable certainty.
Three permissible data sources:
(1) Personal Knowledge
(2) Other evidence in the trial record made known to the expert at trial by HYPOTHETICAL QUESTION; OR
(3) Facts not in evidence (outside the record) if material is of a type reasonably relied upon by experts in the particular field to inform this opinion.
Massachusetts distinction on evidence that can be used by an expert.
MA: Expert may rely upon facts not in the trial record if such facts would be independently admissible in evidence if the person who provided them to the expert (either orally or in writing) were to testify in court.
What must expert opinion be to be admssible?
(1) Relevant to the issue at hand and
(2) Sufficiently reliable.
What the four principal factors that the court must apply to determine if expert testimony is sufficient reliable? [Daubert test]
TRAP
(1) Testing of principles or methodology
(2) Rate of Error
(3) Acceptance by other experts in the same discipline
* General acceptance not required, but there must be a level of acceptance.
(4) Peer review and publication.
When can an expert testimony be aided by learned treatise? [Hearsay exception]
(1) on direct examination of a 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 experts. COMES IN AS SUBSTANTIVE EVIDENCE
BUT learned treatise may not be introduced as exhibit.
Massachusetts distinction on use of learned treatise during expert testimony. [General rule plus exception]
Generally, a party may use a learned treatise as substantive evidence only on cross-examination of opp.’s expert.
Exception: Medical Malpractice Action [Civil case]
Party may use scientific treatise by a recognized expert as substantive evidence:
(a) to help prove her direct case (i.e. the party is not limited to using the treatise to contract dict the other side’s expert; AND
(b) may read the treatise into evidence without the need for live expert testimony
(c) the proponent must give 30 days pretrial notice of the intent to use such a treatise as substantive evidence.
Can opinion testimony embrace an ultimate issue in a case?
YES, but all other requirements for opinion testimony must be satisfied.
Exception: “Ultimate issue” is still proper object if expert seeks to give direct opinion that D did or did not have relevant mental state. Instead, expert can only testify in general terms about the effect of D’s mental condition.
