Examination Of Witnesses Flashcards
Witnesses must have personal knowledge. That means…?
Perception, memory and communication
If a witness refuses to answer questions in cross-examination, testimony be used?
No. Their direct examination must be stricken
What is the scope of cross-examination (i.e. Can it go beyond the scope of direct?)
You can cross examine a witness on issues raised during the direct examination or issues of credibility/impeachment.
What is present recollection revived?
A witness is testifying based on the memory
But they cannot call a particular issue/fact
Counsel can then show the witness anything to jog their memory (even a bowl of pasta!)
Can the item used to refresh a witness’s past recollection be introduced as substantive evidence?
No. Used to refresh the witnesses memory but cannot be introduced into evidence.
What is passed recorded recollection?
Witness once had personal knowledge of the facts contained in writing
They now cannot recall that information
Writing was even made by the witness or adopted by them
The making or adoption occurred when events were fresh in the witnesses memory
Witness can vouch for the accuracy of the writing
The writing maybe read into evidence
When is layperson (opinion) witness testimony admissible?
It’s based on the witnesses personal knowledge
It will assist the jury in deciding the facts, and
It is not based on specialised knowledge
What skills does an expert witness require to be counted as such?
Expert must have: (1) Education, (two) training, or (three) experience that will assist the trier of fact
What three things can serve as the basis for an expert opinion?
Personal knowledge
Other evidence made known to the expert before or during the trial
Fax outside the record of a type an expert would reasonably rely upon in the field
What factors should you consider in determining whether the expert opinion can be reasonably relied upon?
Theory or scientific technique behind the testing
Whether subject to peer review and publication
Known on potential error rate
Whether it is generally accepted in the scientific community
Can an expert testify on the ultimate issue to be decided by the trier of facts?
Yes
To be admitted an expert testimony must be G R R E A T. What does that stand for?
G - Trial court acts as the gatekeeper if the expert is used
R - Reliable method
R - Relevant
E - Evidence that will
A - assist the
T - Trier of fact
How can you use a learned treaty?
It can be relied upon by an expert during direct examination
Or
Used to impeach an expert on cross-examination
Can a learner treaty be admitted as substantive evidence for the truth of the matter asserted?
Yes
What is the foundation to show that the learned treaty is that?
Judicial notice
Expert on the stand says it’s a learned treaty
Your own expert
Stipulation
