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PA Evidence > Opinion Testimony > Flashcards

Opinion Testimony Flashcards

1
Q

FRE condifies Daubert and says that EW testimony is OK if

1) testimony is based on sufficient facts or data
2) the testimony is the product of reliable principles and methods; and
3) the witness has applied the principles and methods reliable to the case.

Has PA adopted this standard?

A

no

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2
Q

PA has not adopted the DAUBERT reliability test for EW. Instead, it applies the ____ Test

A

FRYE

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3
Q

Under FRYE, the question is not the reliability of an expert’s methodology, but the ____ _____ of the methodology.

A

General acceptance

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4
Q

Under FRYE’s “general acceptance” test, PA does not allow expert testimony on these three things

A

False confessions

Revived memories

Lie detectors

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5
Q

Does PA allow EW testimony on battered child/spouse syndrome?

A

Yes

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6
Q

Does PA allow EW testimony on eyewitness ID?

A

Yes

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7
Q

Does PA allow EW testimony on product/design defect?

A

Yes

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8
Q

Does PA allow EW testimony on professional negligence/malpractice?

A

Yes

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9
Q

Does PA allow EW testimony on responses and behaviors of victims of sexual assault?

A

Yes

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10
Q

Does PA allow EW testimony on false confessions?

A

No

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11
Q

Does PA allow EW testimony on revived memories?

A

No

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12
Q

PARE requires that an EW posses “knowledge beyond that possessed by the average layperson.” However, PA courts and comments to the Rule refer to a ____ ____

A

Reasonable pretension

Pretension = a claim or the assertion of a claim to something.

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13
Q

In med mal cases, what must be true of EWs?

A

They must be the same speciality as the D

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14
Q

Facts supporting an expert’s opinion must be either (3)

A

Facts within the EW’s personal knowledge

Facts established by the evidence; or

Facts of a type on which experts in that field would reasonably rely.

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15
Q

In PA, can an expert witness simply endorse the report and opinion of a non-qualifying expert?

A

no

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16
Q

Does FRE require that an EW disclose the basis of his opinion? Does PARE?

A

No

Yes

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17
Q

Doctor Witness, an ortho, testifies that she read the report of Doctor non-witness and she agrees with his conclusions. OK?

A

No. In PA, an expert witness cannot simply endorse the report and opinion of a non-qualifying expert

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18
Q

How does the FRE and PARE differ with respect to learned treatises?

A

In FRE, they can be read into the record and came come in for their truth.

In PARE, no H/S adopted. The treatise may form part of an expert’s basis and can be used to impeach, but it is NOT admissible substantively.

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19
Q

Under FRE, a prior out-of-court statement of ID that was made by a witness who testifies at trial is excluded from the definition of HS and may be admitted.

In PA, how is the rule augmented?

A

It extends to ID of either persons OR things AND the witness must testify to making the prior ID.

20
Q

Victor is mugged. Shortly thereafter, V, in the presence of Cop, picks D out of a lineup. Six months later at trial, Victor makes an in-court ID of D as the mugger. May Victor also testify that he picked D out of the lineup six months ago?

A

Yes, in both Fed and PA

21
Q

Victor is mugged. Shortly thereafter, V, in the presence of Cop, picks D out of a lineup. Six months later at trial, Victor testifies but does not testify to the prior ID. May Cop testify that V picked D out of the lineup six months ago in Fed Ct? In PA? Explain

A

In Fed Ct, yes

In PA, NO. Prior ID of a witness is admissible only if that witness testifies to the prior ID. Third party cannot do it for him.

22
Q

What is the PARE rule on impeaching your adversary;;s witness?

A

Any evidence relevant to the issue of impeachment OK UNLESS prohibited by statute or the Rules.

23
Q

What are the five basic impeachment techniques?

A

PIS

Bias, motive, interest

Prior Convictions

Prior bad acts

Bad rep. for truth and veracity

24
Q 
PIS
Bias, motive, interest
Prior Convictions
Prior bad acts
Bad rep. for truth and veracity

These are the five basic impeachment techniques. State whether PA is the same or whether it varies from the Fed Rules.

A

PIS (vary)

Bias, motive, interest (same)

Prior Convictions (vary)

Prior bad acts (vary)

Bad rep. for truth and veracity (vary)

25
Q

PIS are generally admissible only to impeach. Is PA law the same on this point?

A

Yes

26
Q

Under the FRE, when and only when are PIS admissible for the TMA?

A

When given under oath at a legal proceeding.

27
Q

Under the FRE, PIS admissible for the TMA only when given under oath at a legal proceeding. PA adds more exceptions. What are they? (3, including this one).

A

When given under oath at a legal proceeding.

When written, signed, or adopted by the witness

When contained in a contemporaneous audio or videotape recording of the witness.

28
Q

In PA, PIS are admissible for TMA when they are . . . (3 options)

A

When given under oath at a legal proceeding.

When written, signed, or adopted by the witness

When contained in a contemporaneous audio or videotape recording of the witness.

29
Q

P calls W to testify that D committed the crime. Instead, W testifies that D didn’t do it. P may use a PIS that was written and signed by W to impeach under FRE and PARE. Does this statement come in for the TMA in fed court? In pa?

A

No.

Yes, in PA.

30
Q

P calls W to testify that D committed the crime. Instead, W testifies that D didn’t do it. P has a PIS of W on video tape during an interview with police. For what purpose can this be used in Fed Ct? In Pa ct?

A

In fed. only to impeach

In Pa, to impeach AND for the TMA.

31
Q

Is EE permitted to prove a PIS?

A

Yes

32
Q

How do the foundation requires for EE to prove a PIS differ in PA and Fed ct? In other words, what must P do to get it in?

A

FRE says that a witness must be afforded an opportunity to explain or deny the PIS

PARE says that P must disclose (if oral) or show (if written to W during cross, W must be given an opportunity to explain or deny, AND the opposing party must be given an opportunity to question the W about the PIS

33
Q

Under the FRE, prior convictions can be used to impeach if it is the proper kind of crime. What are the two?

A

Any crime (M or F) if it involves dishonesty or false statement. Court must admit.

Other felonies (no Ms) in the discretion of the court.

34
Q

Under the FRE, a crime of dishonesty or deceit requires what?

A

False statement

35
Q

Is robbery considered a crime of dishonesty or deceit under FRE? Is larceny?

A

No and no

36
Q

How does PARE differ with respect to crime of dishonesty or deceit?

A

Much broader.

37
Q

Which crimes do NOT involve dishonesty or deceit in PA?

A

all violent crimes (except robbery), drug crimes, prostitution

38
Q

How does FRE and PARE differ with respect to juvenile adjudications for impeachment?

A

FRE does not allow normally

PARE generally allows in criminal cases

39
Q

How does PARE and FRE differ with respect to the use of EE of convictions?

A

FRE uses it only if impeachment on cross is unsuccesful.

PARE says if crim D, then no cross; EE only

40
Q

Under FRE, is inquiry on cross of specific acts of deceit or lying not resulting in a conviction OK? What about in PA?

A

Yes, subject to 403 balance

Never allowed in PA–even if probative of untruthful character.

41
Q

W lied on an application for insurance. Can you ask about the lie on cross at fed court? In PA?

A

Yes

No

42
Q

How does FRE and PARE differ with respect to the methods used to impeach with evidence of bad character for truth and veracity?

A

FRE – rep or opinion

PARE – rep ONLY. No opinion.

43
Q

How does FRE and PARE differ with respect to the methods used to show an impeached witness’ good character for truthfulness?

A

FRE – rep and opinion

PARE – rep only. no opinion

44
Q

How does FRE and PARE differ with respect to the purposes for which a PCS can be used? With respect to TMA?

A

FRE admits only to rebut an express or implied charge of recent fabrication, improper influence, or motive. Comes in for TMA.

PARE admits it for the above purpose, PLUS in response to impeachment with PIS or to rebut a claim of faulty memory. Doesn’t come in for TMA–only to bolster.

45
Q

W testifies for your client. On cross, opposing counsel confronts W with a PIS. W explains that the statement was misunderstood. You offer a PCS made by W.

Admissible? How can jury use the PCS?

A

Not in FRE, as PCSs are only admissible to rebut an express or implied charge of recent fabrication, improper influence, or motive.

Yes under PARE because it is rebutting a PIS. Jury cannot use for TMA–can only bolster.

PA Evidence (6 decks)

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