IV. WITNESSES Flashcards
A. Competency of Witness, In General
1. Basics:
***(a) Personal Knowledge
perceved with their own senses, not speculation or hearsay (recognize someone’s voice because his dad said so is not)
(b) Oath or Affirmation
no particular words required
A. Competency of Witness, In General
2. Juror as Witness—juror may not testify:
a) in same case in which sitting as a juror as to __any matter_; or
b) in any other case as to ___statements made in deliberations __ or
_the effect anything had on deliberations __.
BUT may testify as to any outside influence and extraneous prejudicial information
- Texas—in addition to personal knowledge and oath/affirmation:
Witness incompetent to testify if court finds:
Insane at time of events witnessed or at trial, or
Child or other person lacks sufficient intellect to relate events witnessed
B. “DeadMan’sStatute”
1. In General (Multistate rules)
(a) Witness is not ordinarily incompetent merely because she has an interest—a direct legal stake—in outcome of the litigation.
(b) BUT under a typical state “Dead Man’s Act,” in a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent.
- Texas Dead Man’s Rule Interested witness incompetent if:
vs. Federal
(a) civil action by or against decedent’s estate, or by or against decedent’s heirs or legal representatives
(b) either party to action seeks to testify to oral statement made by decedent
BUT party may testify to decedent’s oral statement IF EITHER: decedent’s oral statement is corroborated by other evidence, or
incompetent party is called by adverse party to testify concerning decedent’s oral statement
Under the FRE, there is no “dead man’s rule.” Thus, on Multistate exam, witnesses ordinarily are not incompetent on this ground. BUT, if question explicitly states that the particular jurisdiction in which the case arises has a “dead man’s statute,” apply the rule in B.1.(b) above.
C. Leading Questions
generally
(a) GENERALLY NOT ALLOWED on DIRECT EXAMINATION of witness.
(b) Generally ALLOWED on CROSS-EXAMINATION of witness.
C. Leading Questions
(c) allowed if
(c) BUT allowed on DIRECT EXAMINATION as follows:
1, preliminary or introductory matters
2, a useful and forgetful witness
3, hostile witness
4, adverse party or someone under their control
D. Writings in Aid of Oral Testimony
1. Refreshing Recollection
(a) Basic rule: Witness may not read from prepared memorandum; must testify on basis of current recollection.
(b) BUT if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
- cant read, only from his own knowledge
D. Writings in Aid of Oral Testimony
1. Refreshing Recollection
safeguard
(c) Safeguards against abuse: adversary has right: (1) to inspect the memory-refresher (2) to use it on cross-examination ***(3) to introduce into evidence
D. Writings in Aid of Oral Testimony
2. Past Recollection Recorded (Hearsay Exception)
HYPO 36. In Hypo 35, Homer looks at the list of stolen items he prepared for the police the day after the burglary. It fails to jog his memory, and he is still unable to testify on the basis of current recollection. At this point, Homer’s attorney seeks to read the list into evidence. Objection: hearsay.
Hearsay exception for past recollection recorded. Foundation for admissibility of contents of writing:
(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 when event was fresh in witness’s memory
(5) witness can vouch for accuracy of writing when made or adopted.
D. Writings in Aid of Oral Testimony
2. Past Recollection Recorded (Hearsay Exception)
HYPO 37. After laying foundation, Homer’s attorney seeks to introduce Homer’s memorandum into evidence as an exhibit.
(b) May the insurer have the memorandum introduced as an exhibit?
improper;
yes; safeguard
E. OpinionTestimony
1. Lay Witness
(a) Lay opinion admissible if:
(1) RATIONALLY BASED ON WITNESS’S PERCEPTION (personal knowledge), and
(2) HELPFUL to jury in deciding a fact
(b) Examples: drunk/sober speed of vehicle sane/insane emotions of another person handwriting
E. OpinionTestimony
2. Expert Witness
(a) Qualifications:
TX
(a) Qualifications: SKEET
education AND/OR experience
skill, knowledge, education, experience, training
***Texas rule on expert qualifications in cases based on “health care liability claims” (medical malpractice):
Expert must be actually practicing same type of health care as that of defendant, either at time of testimony or at time claim arose. (“Practicing” includes teaching at medical school or other relevant institution.)
E. OpinionTestimony
- Expert Witness
(b) Proper Subject Matter
Scientific, technical or other specialized knowledge that will be HELPFUL to jury in deciding a fact
E. OpinionTestimony
- Expert Witness
(c) Basis of Opinion
Expert must have opinion based on “reasonable degree of probability or reasonable certainty”
AND 3 permissible data sources:
(1) personal knowledge (e.g., treating physician)
(2) other evidence in the trial record (testimony by other witnesses, exhibits (medical reports, X-rays))—made known to expert by hypothetical question
(3) facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions
-interview with patient’s friends
-report by other Dr.
if relied upon in the field
but can’t read the interview or report because no backdoor hearsay
