III. Witnesses

Question 1

When is a witness competent to testify

Answer 1

Non-expert witnesses must have personal knowledge of the matter to testify

Must give an oath or affirmation to testify truthfully

Child: can testify if able to differentiate truth from falsehood.

Question 2

When can a judge or juror testify?

Answer 2

Judge cannot testify at trial

Juror can testify in limited circumstances, but generally may only testify after trial about (i) extraneous prejudicial info brought to jury’s attention, (ii) improper outside influence, or (iii) mistakes on verdict form.

Question 3

Presumption of competence of witness to testify

Answer 3

FRE: every person is presumed competent and questions of mental competence go to the weight, not admissibility of evidence.

In NC: can be disqualified from testifying if she cannot express herself on the matter either directly or through an interpreter or she cannot u/s the duty of a witness to tell the truth.

Question 4

Dead Man’s Statutes

Answer 4

At common law (not FRE) protects decedent’s estate from parties w/ financial interest in the estate; predecessors in interest or those directly affected financially may be disqualified.

Waiver: protected party can waive by failing to object to disqualified witness or introducing protected evidence.

Not applicable in criminal cases.

NC: the statute protects both incompetent and decedent estates.

Only applies to oral communications between witness and decease/incompetent

Doesn’t apply/effectively waived when: executor, administrator, survivor, guardian, or person who derived title or interest from the deceased or incompetent person testifies about the subject matter of the oral communication;

The testimony of the deceased or incompetent person is offered about the same tx or occurrence; or

The executor, administrator, survivor, guardian, or person who derived title or interest offers evidence of the subject matter of the oral communication.

Impeachment.

Question 5

Impeachment

Answer 5

Challenge to witness testimony; can be based on character for truthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness.

Question 6

Witnesses character for truthfulness

Answer 6

Can’t bolster witness credibility, and evidence of truthful character only admissible after witness’ truthful character attacked.

NC: A witness consistent statement is admissible to corroborate the witness’ testimony, even if the witness has not yet been impeached.

Opinion/reputation testimony: admissible to attack witness’ character for untruthfulness.

NC: reputation testimony may arise from the community in which the witness resides or any community in which the witness has a well known or established reputation, so long as the defined community is an appreciable group that has an adequate bases for its opinion.

Specific instances of conduct: G/R not admissible as indication of character for truthfulness. OK on cross if probative of witness’ truthfulness or truthfulness of another witness about whose character he testified.

When witness denies specific bad act, extrinsic evidence NOT admissible to prove specific act (exception for criminal conviction)

In NC: a witness can’t be impeached on cross by questions about past or pending indictment.

Question 7

Criminal conviction regarding a false statement

Answer 7

Crimes involving dishonesty/false statements can be used to impeach any witness for any conviction.

NC evidence that a witness was convicted of any felony or Class A1, Class1, or Class 2 misdemeanor shall be admitted to impeach the witness.

Question 8

Criminal conviction not involving dishonesty/false statement

Answer 8

Admissible to impeach witness only if crime is punishable by death or imprisonment for more than one year.

If witness is criminal D-admissible only if it’s probative value outweighs the prejudicial effect to D (stricter balancing test)

Other witnesses: generally admissible; discretion to exclude if probative value is substantially outweighed by its prejudicial effect.

NC evidence that a witness was convicted of any felony or Class A1, Class1, or Class 2 misdemeanor shall be admitted to impeach the witness.

Conviction or release less than 10 years ago: admissible if probative value substantially outweighs the prejudicial effect and reasonable written notice of intent to use evidence.

Pardon: conviction not admissible if subject of pardon, annulment, or other action based on finding of innocent; pending appeal does not prevent impeachment.

Juvenile adjudication: not admissible to impeach D; may impeach other witness’ character for truthfulness in criminal case if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence.

Question 9

Prior inconsistent statements

Answer 9

Can be used to impeach if inconsistent w/ material part of witness testimony.

Extrinsic evidence of prior inconsistent statement admissible only if witness has chance to explain/deny statement adn opposing party can examine witness about it (NOT REQUIRED for hearsay declarants or opposing party statements)

NC: witness doesn’t have to be given the chance to explain or deny the inconsistent statement when extrinsic evidence is introduced.

Question 10

Impeachment as a hearsay declarant

Answer 10

Credibility of declarant can be attacked by any evidence admissible if declarant had testified as witness; if declarant called as a witness, he can be examined as if under cross.

Question 11

Rehabilitation of a witness

Answer 11

Expalin/clarify on redirect

Offer opinion/reputation evidence of witness’ character for truthfulness (only if character attacked on that ground)

Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence.

Question 12

When are religious opinions and beliefs admissible?

Answer 12

Can’t be used to impeach credibility, but admissible to show bias/interest

Question 13

Contradictory evidence

Answer 13

Can be used to impeach if it contradicts witness’ testimony, including contradictory material extrinsic evidence.

Question 14

Collateral issues

Answer 14

G/R can’t impeach credibility of witness by introducing extrinsic evidence of a collateral matter.

In NC: may be admitted if questions connecting the witness directly with the action or the parties and questions tending to show the witness’ motive, tempter, disposition, or conduct or the witness’ interest in the action or the parties.

Question 15

Present recollection refreshed

Answer 15

Witness may examine any item to refresh his present recollection; testimony must be based on recollection, not item.

A/P may inspect the item and enter relevant portions as evidence

Item may be redacted by court, and admissible for substantive purpose only if satisfies other restrictions on admissibility.

Question 16

Past recollection recorded

Answer 16

Memo/record about a matter witness once had knowledge of but now has insufficient recollection to testify about it may be admissible under recorded recollection hearsay exception; may be read into evidence, but received as an exhibit only if offered by A/P.

Question 17

Opinion testimony

Answer 17

Lay witness opinion is admissible if based on perception of witness and helpful to clear u/s of witness’ testimony or determination of fact in issue.

Expert witness testimony: subject matter must be scientific, technical or some other specialized knowledge (testimony is reliable) that helps trier of fact u/s evidence or determine a fact at issue (testimony is relevant)

Question 18

Qualified expert

Answer 18

Qualified by knowledge, skill, experience, training or education

Testimony must be based on sufficient facts/data

Testimony must be product of reliable principals and methods

Witness applied principles/methods reliable to facts of case AND

Reasonable degree of certainty (i.e. probably)

Ultimate issue: expert may not state an opinion about whether criminal D had the requisite mental state.

NC: no prohibition on experts stating opinions on criminal defendant’s mental state.

Basis of opinion: opinion based on inadmissible facts admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion of the subject; may disclosed underlying facts to the jury if probative value substantially outweighs prejudicial effect; need not ask in form of hypothetical.

NC: when an expert bases her opinion on facts that are inadmissible under the rules, they may be disclosed so long as their prejudicial effect does not substantially outweigh their probative value.

Question 19

NC experts in medical malpractice

Answer 19

Expert must:

1. Be licensed healthcare provider
2. Specialize in the same specialty as is testifying to or specialize in similar specialty that includes performance of the procedure at issue and has prior experience treating similar patients
3. In year prior to date of occurrence at issue, expert must have devoted a maj of her professional time to either: active clinical practice in same health profession and if the party is a specialist, in the same specialty of a similar specialty that includes performance of the procedure at issue and have experience treating similar patients or teaching at accredited school, residency or clinical research program in relevant profession and if specialist, specialty.

If doctor qualifies as an expert and from practice/teaching knows the applicable standard of care for medical support staff, the doctor may testify to standard of care.