Midterm Flashcards
Lay Witness
Witness who has factual knowledge
Eyewitness
Lay witness with firsthand knowledge; not only visual
Friendly witness
A witness that is helpful to the client’s position
Hostile witness
A witness who is adverse to the client’s position
Investigative questions should be:
- Open ended which:
a. Invite witness to explain fully
b. Makes no assumptions
c. Convey no information to the witness
d. Find out what happened in his or her own words
Checking a Witness’s Qualifications by:
- Assume each witness is a potential court witness
- Make sure each witness is reliable and credible
- Competence:
a. Requires only that witness must have personal knowledge of the matter - Credibility
a. Will the witness be believable - Bias
a. What motive does the witness have to lie or be truthful
Witness Statements
- Written documents that sets forth what witness said during the interview
- Check about discovery rules (to ensure you aren’t needlessly creating a record you will have to turn over)
- Witness reviews the content
- Witness verifies with a signature
Investigations: Where do you start?
- Begin with
Investigation Plan
- Step by step list of tasks to verify factual information
- Have supervising attorney approve plan
- Contact the police department
- Contact and interview Witnesses
- Obtain Records- Medical or employment
- Contacting the National Weather Service
- Obtaining Vehicle Title and Registration Records
- Contacting the Insurance Company
9 Using a Professional Investigator’s Services
Locating Witnesses
- Challenging task to locate witness with unknown address
- Finding People
a. Services
b. Social media search engines - Other information sources
a. Media reports
b. Court records
c. Deeds to property
d. Utilities
e. Birth, Marriage, Death certificates (public records)
Accessing Government Information
- Tremendous resource for the legal investigator
- Public records (county courthouse)
- Federal agencies (IRS, social security)
- State agencies
- Find out what rules apply
- Freedom of Information Act (FOIA)
Evidence
Anything that is used to prove the existence or nonexistence of a fact
Rules of Evidence
Determine use in court (FRE or TRE)
Direct Evidence
Any evidence that, if believed, establishes the truth of the fact in question
Circumstantial evidence
Indirect evidence that, even if believed, does not establish the face in question but only the degree of likelihood of the fact; creates an inference
Relevant Evidence
Evidence that tends to prove or disprove the fact in question
Note: Relevant evidence may still cease to be admissible if probative value outweighed by other factors (causes bias or confusion)
Authentication of Evidence
Process by which attorney lays foundation to introduce/admit evidence by demonstrating that the evidence is what attorney says it is
Hearsay
Testimony that is given in court by a witness who relates not what he or she knows personally but what another person said; what someone else heard another say
- Personal observation- Witnesses can only testify about what they personally observed, heard, felt, smelled, etc, and not what they heard someone else say
- Exceptions
a. Statements made on impending death
b. Excited utterance
Final Step of the Investigation
Summarizing the Results
- Overall Summary (describes all facts gathered; written to inform someone not familiar with the case)
- Source-by-source Summaries (sections on each source utilized and information gleaned from the same)
- Conclusions and ?
Expert Witness
Professionally trained, advanced knowledge or substantial experience
