Pg 21 Flashcards
What are some factors that may influence a witness’ credibility?
– perception – recollection – bias – interest in the outcome of the trial – prior inconsistent statement
How can a witness’ perception influence his credibility?
There is a disconnect between what happened and what the witness perceived happened
What are some examples of how a witness’ credibility can be influenced by perception?
If it’s dark outside, there’s bad lighting, the witness couldn’t see well, it was far away, it happened fast, it was stressful, the witness has vision issues/hearing problems, objects were obstructing the witness’ view, the witness saw the events at an odd angle, etc.
The witness’ credibility affects what?
How much weight should be given his testimony, not whether or not he can testify
When perception is tested as a factor that can influence the witness’ credibility, what is the focus on?
Whether extrinsic evidence can be used to prove up impeachment (deals with collateral/non-collateral stuff)
Are you permitted to ask a witness “you can’t remember what colour the defendant’s car was, can you?“
Yes because that is impeachment regarding his ability to perceive or recollect details about the event in question
Are you permitted to ask a witness if he was drunk when he saw the accident?
Yes, because that would impair the witness’ capacity to perceive or recollect what happened
Are you allowed to ask a witness if they are an alcoholic in order to impeach them?
No because then you’re just trying to prove a trait of drunkenness and this requires a juror to use impermissible propensity inference to infer the witness was drunk at the time of the accident
Is it permissible to ask a witness if they suffered a traumatic brain injury three months before they witnessed an accident?
Yes, because this relates to the witness’ ability to accurately perceive and recollect the events in question
If the plaintiff sues the defendant for negligence for a car accident, and in his case in chief the plaintiff‘s witness says defendant ran the red light, then on cross, defendant’s counsel asks “isn’t it true that you are an alcoholic that has four shots every day before you leave the house?“ Would that be allowed?
Yes because it has sufficient regularity and specificity to qualify as habit evidence so it would be permissible impeachment of the witness’ capacity to perceive or recollect
How is recollection a factor that could influence a witness’ credibility?
It affects how well the information that the witness perceived was stored and how well it can be retrieved from the witness’ memory
What are some different ways that recollection can affect a witness’ credibility?
Lapse of time, brain function, etc.
If the witness is a paramedic that testified about a victim’s injuries, how could his recollection be a factor that would influence his credibility?
If it has been a year since the injury, and in the meantime he has seen 400 different crash sites, he might not be able to distinguish details from the victim’s accident with similar other ones
How could a witness being under the influence of alcohol or drugs at the time he observed something affect his credibility?
It could affect his ability to accurately perceive events and to recall them
What is the difference between perception, bias, and recollection as factors that might influence a witness’ credibility?
– Perception: event to eyeball
– recollection: eyeball to brain
- Bias: brain to mouth
If you were trying to impeach a witness’ credibility through recollection, would it be permissible for you to ask “do you recall how many seconds the light was red before the defendant ran it?“
Yes, because you are asking about the witness’ ability to recollect or perceive details about an event in question
Would it be permissible to attempt to impeach a witness’ credibility through recollection by asking if they remember what they got on their driver’s test?
No, because that is something most people wouldn’t be able to remember, but it wouldn’t influence whether or not he could remember details about the event in question
Is it permissible to ask a witness if a year before the accident he observed whether he developed chronic alcohol induced Alzheimer’s?
Yes, because that would show that as a result of chronic drinking, the witness developed a permanent brain condition that affected his capacity to recollect the accident he saw, even if he wasn’t drinking on the day of the accident
What does it mean to try to impeach a witness through evidence of bias?
The evidence shows the witness has an interest in the outcome of the trial, or a strong feeling about a party’s position, so may skew their testimony and thus it shouldn’t be given as much weight as it otherwise might have
If a witness is married to a party, how might that produce a bias that would affect his credibility?
It is more likely he will testify favourably for that party, so his testimony shouldn’t be given much or any weight
If a witness was fired by a party, is it likely that he would have a bias against that party?
Yes, so that may skew his testimony against that party
What are different situations that could cause a bias?
Romantic interest, familial, financial, political, etc.
Is bias considered to be collateral or non-collateral?
Always non-collateral, so it can always be proven up extrinsically through any form of reputation opinion or specific instances
How can social familiarity create a bias?
If the witness and a party are members of the same bridge club, or dragracing club, or have a social or romantic relationship, that could create a bias
If there is a negligence case where the defendant crashed his car, would it be permissible to ask the witness if he and the defendant were members of the same drag racing club?
The intention would be to show a bias, but by saying this there is a risk that the jury will use that information for propensity inference that the defendant likes to drive fast. So a judge would have to decide if this was unduly prejudicial under 403
What would be a situation that you would want to attack your own witness’ credibility?
- If you ask your witness what colour the defendant’s light was when the accident happened, but he surprises you and says it was green, you can continue with “did defendant threaten to hurt you if you didn’t testify for him?“ If the witness says yes, then the jury knows about a bias
- if the victim called 911 because of domestic abuse, but before trial she makes up with the defendant and now won’t testify against him, prosecutors often have to impeach their own witness
- asking if the party had passed a bad check at the witnesses store previously
– asking if the party had recently broken up with the witness
Would this situation create a bias that you could impeach the witness for? “Witness one testifies that defendant had the red light. Defendant then calls witness to testify that witness one intentionally prepared the defendant’s taxes wrong, so that defendant would have to pay a big penalty”
. This is offered to show the witness has a bias against the defendant. If witness one disliked defendant enough to mess up his taxes, he might be willing to lie under oath
What is the question to always ask yourself in order to determine if a bias is present?
Whether the witness has an axe to grind
Is bias grounds to exclude testimony?
No, just to introduce impeachment evidence to suggest that the testimony should be given less weight
