Kaplan Pgs 478-498 - Expert Testimony And Hearsay Flashcards
If someone is giving opinion testimony and is a lay witness, what is the testimony limited to?
The opinion is limited to testimony that is:
– rationally based on the witness’ perception
– helpful to clearly understand the witness’ testimony or to determine a fact in issue
– not based on scientific, technical, or other specialized knowledge
What is the proper scope of non-expert opinion testimony?
They can speak about:
– perceptions regarding speed and measurements
– physical states such as intoxication or injury
– personal emotions of others such as fear or sorrow
– sensory descriptions such as taste, sound, smell
– value of their own land
– sanity of the testator when given by subscribing witness to the will.
Legal conclusions must be avoided, such as seeing someone is schizophrenic, an alcoholic, or that they fractured their spine.
Is law-enforcement considered to be expert or lay opinion?
This is a grey area, sometimes their testimony falls into lay opinion and sometimes it is qualified as expert testimony
How do federal courts assess the reliability of scientific evidence?
By asking the following questions:
– has the methodology been tested?
– are there known rates of error?
– has the methodology been generally accepted?
– has the methodology been subject to peer review?
What is the most common way to impeach an expert witness?
By showing he is biased. This can be by showing he’s getting a large fee to testify, or that he always aligns himself with a particular point of view, etc.
When can you attack a witness’ character for truthfulness?
– you can do this through testimony about the witness’ reputation for having a character for truthfulness or untruthfulness, and then the other side can come back with testimony in the form of opinion about that character, but evidence of truthful character can only be introduced after the witness’ character for truthfulness has been attacked.
Evidence of bias is not considered to be an attack, so the other side would not be able to introduce evidence of truthfulness after bias
If a witness testifies at trial that the defendant was with her at the time of the burglary, and the prosecution introduces evidence that she is well known in the neighbourhood for being a liar, what can the defense do?
They can introduce other opinion or reputation testimony about her honesty.
But if the prosecution had only introduced that she had been dating the defendant, that would not allow the defense to introduce evidence about her reputation for honesty because all that the prosecution was talking about was bias
Once a witness takes the stand, what are the things they can be cross examined about?
– their own acts of untruthfulness, and
– the specific acts of the person that they were being a witness for
What’s the difference between the common law and the FRE in relation to impeachment of a witness by evidence of a criminal conviction?
– Common law: the conviction of a person of treason or any felony, a misdemeanour involving dishonesty, or the obstruction of justice is said to be an “infamous“ crime and renders the convicted person totally incompetent as a witness.
– FRE: the witness can still testify, but the opposing party can bring up the past crimes to undermine the witness’ credibility
When can you bring in evidence of a juvenile adjudication against a witness to destroy their credibility?
– if it is offered in a criminal case
– if the adjudication was of a witness and not the defendant
– if an adult were to be convicted of that same offense, the record would be admissible to attack the adult’s credibility, and
– admitting the evidence is necessary to fairly determine guilt or innocence
Can you introduce a conviction to undermine a witness’ credibility if the conviction is pending on appeal?
Yes, but the evidence of the appeal is also admissible
Is a previous nolo contendere plea admissible against a witness to attack their credibility?
Yes
Is it proper to attack a witness’ religious beliefs or opinions in order to attack their credibility?
No
The court should exercise what kind of control over the mode and order of examining witnesses?
Reasonable control
What is the rationale for the requirement that the court exercise reasonable control over the mode and order of examining witnesses?
– To make sure procedures are effective for determining the truth
– to avoid wasting time
– to protect witnesses from harassment or undue embarrassment
What are the rules for what you can ask about on cross-examination?
– Matters affecting the witness’ credibility
– otherwise the subject matter should not go beyond the subject matter of the direct examination
What are the times that it’s OK to use leading questions?
– On cross-examination
– for a hostile witness, an adverse party, or a witness that is identified with an adverse party
– to establish preliminary background information about a witness
– to jog a witness’ memory
– to lay foundation
– to help a young or timid witness
What is a statement with regard to hearsay?
A person’s oral or written assertion, or nonverbal conduct if intended as an assertion
What is a declarant?
A person who makes a statement
When is hearsay not allowed to be admitted?
Any statement not made in court, is potentially hearsay if it is offered for its truth.
Ie: David is on trial for murdering his wife who was last seen alive on August 25 and his body was never found. The prosecution calls Wendy to testify that the wife called her on August 30 and said, “David has threatened to kill me.“ This testimony is hearsay if offered to prove David threatened the wife, but not hearsay if just proving that the wife was still alive on August 30
When is nonverbal conduct considered to be hearsay?
When it is intended as an assertion. This includes things like gestures such as pointing a finger, nodding, giving a thumbs up, or silence when it is meant to communicate, and sign language
What is a good approach when doing a hearsay analysis?
– determine the assertion or conduct that is the out-of-court statement: decide if it is nonverbal conduct, or non-assertive conduct, etc.
– determine who is the declarant: distinguish between the person who made the statement and the witness that is testifying about it, and whether the declarant is a party or a non-party
- determine the purpose that the evidence is offered for: if it is offered for its truth, it is hearsay. If it is offered for a non-truth purpose, it is not hearsay
– apply possible hearsay exceptions
What are situations where words themselves have legal significance aside from their truth, and are thus considered to be non-hearsay?
– Tortious words: the actual words of slander or libel in a defamation action
– transactional words: the actual words of offer and acceptance in a contract, or the words of intent in a transfer, sale, will, or deed
What are the two different forms of verbal acts that are considered to be non-hearsay?
– Words of legal significance
– explanatory words that accompany ambiguous physical actions
How does an explanatory word that accompanies an ambiguous physical action classify itself as a verbal act and thus as non-hearsay?
The words’ legal significance is independent of their truth.
Ie: if you hand someone a pen and also say “this is a gift,” without those words, it would be unclear what was happening with the pen
What are the three categories of nonhearsay?
Verbal acts, statements of state of mind, statements to impeach the witness
What are the two categories of hearsay exceptions?
Exemptions and exceptions