Short and Happy Guide Chapter 4 Flashcards
Live witnesses can be categorized into two primary areas:
lay witnesses
expert witnesses
Articles _ and _ govern witnesses.
6 and 7
Although lay witnesses are generally required to base their testimony on ________ __________ (per Rule 602), lay witnesses may also express ___________ if done so in accordance with Rule 701.
personal knowledge
opinions
Experts have rules that govern their _________ which are different from lay witnesses.
opinions
Can a witness testify as both a lay witness and an expert witness?
Yes
Whether a witness is testifying as an expert or lay witness, he or she must be _____________.
competent
Documentary Evidence must be ______________.
authenticated
Witnesses are ____________ to be competent. Rule 601
presumed
witnesses are presumed to be _____________. Rule 601
competent
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. What Rule?
601
Witnesses are generally ______________.
competent
Is there a rule that excludes a child from testifying?
NO
The traditional test to determine a child’s competency is what?
Whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels the duty to tell the truth.
The traditional test is whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels the duty to tell the truth. Who does this refer to?
Children as witnesses
Courts have also required that a child be of sufficient ___________ to understand the difference between telling a lie and telling the truth.
age
Sufficient ___________ is not specific but determined by the ___________ of the child.
age
maturity
Is there a rule that excludes an insane person from testifying?
NO
What statute comes from state-based rules and not the FRE?
Dead Man’s Statutes
Dead Man’s Statutes vary from _________ to _________.
state
state
Dead Man’s Statutes generally prohibit what?
testimony from an interested party about communications or transactions with a deceased person when such testimony is offered against representatives or successors in interest of the deceased.
_________ ___________ __________ generally prohibit testimony from an interested party about communications or transactions with a deceased person when such testimony is offered against representatives or successors in interest of the deceased.
Dead Man’s Statutes
_________ _________ ___________ are intended to protect estates from claims of perjury.
Dead Man’s Statutes
The nature of this prohibition is one that only applies to civil cases.
Dead Man’s Statutes
Dead Man’s Statues only apply to what type of cases?
Civil cases
Dead Man’s Statutes protect who?
Those who claim directly under the decedent
What constitutes whether a person is an interested party or not? (Dead Man’s Statutes)
Interested Party is one that would be directly impacted by the court’s judgment.
In the event that an exception applies, or there is a waiver, then the interested party is not prohibited from testifying. True or False. (Dead Man’s Statutes)
True
The rule does not prevent an interested party from testifying as to a ________ which occurred after the ________ of the deceased.
fact
death
Representatives of an estate, and those claiming under the decedent may _____ the protections of the the __________ _________ ___________.
waive
dead man’s statute
Waiving the protections of the Dead Man’s Statute might occur under these circumstances:
1. ?
2.
3.
4.
- Waiver based on failure to object
Waiving the protections of the Dead Man’s Statute might occur under these circumstances:
1.
2. ?
3.
4.
- Waiver Based on Previous Testimony
Waiving the protections of the Dead Man’s Statute might occur under these circumstances:
1.
2.
3. ?
4.
- Waiver by Protected Party Asking Questions
Waiving the protections of the Dead Man’s Statute might occur under these circumstances:
1.
2.
3.
4. ?
- Waiver Based on Protected Party’s Testimony
If one who opposes evidence fails to make a __________ __________, then the admission of that evidence will almost always be proper.
timely objection
If evidence from a former trial or deposition is admitted, then the ____________ __________ may explain all matters for which he is examined.
interested party
Admission of former testimony constitutes ____________.
waiver
If the protected party asks the ____________ ______________ a question that would otherwise be prohibited by the statute, then the protected party cannot later _________, based on the statute.
interested party
object
If the _____________ ________ testifies as to a _____________ with an interested person, then once opened, the interested person would not be barred by the Dead Man’s Statute.
protected party
transaction
When a lawyer is posing questions to witnesses on his or her side of the case.
Direct Examination
Direct Examination is when a lawyer is posing question to ______________ on ____________________.
witnesses on his or her side of the case
_______________ _______________ refers to questions asked of a witness that is opposed to the questioning lawyer’s side of the case.
cross-examination
The federal rules provide that cross-examination is limited to the _________ ________ of the ______ _________ and matters affecting the _________ _________. RULE 611(b)
subject matter of the direct examination
witnesses credibility
The federal rules provide that _________ _________ is limited to the subject matter of the direct examination and matters affecting the witnesses credibility. RULE 611(b).
cross- examination
The court may permit the questions to go beyond on the scope of direct. True or False.
True
If you need to ask about matters that are beyond the scope of direct when Rule 611(b) limits the scope of cross examination you have to
call the witness on direct.
On direct examination you are only limited by ___________ (and other applicable rules).
relevance
___________ __________ are questions which suggest the answer.
leading questions
Did you run the red light?
Non-leading
You ran the red light, didn’t you?
Leading
Often - but not always questions that are framed as requiring only a “yes” or “no” answer are ____________ ___________.
leading questions
As a general rule, ___________ ________ are not permitted on direct examination. Leading questions are only permitted on _________ ___________.
leading questions
cross examination
RULE 611(c): Leading Questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
1.
2.
- on cross-examination
- when a party calls a hostile witness an adverse party, or a witness identified with an adverse party
When a witness is called and acts hostile, adverse, or identifies with an adverse party, then courts will permit __________ ___________ because the witness is acting as though he supports the other side of the case. RULE 611(c)
leading questions
Can judges ask questions?
Yes. RULE 614
Rule 614(b) permits a court to examine witnesses regardless of which side called the witness. True or False.
True
