Short And Happy Guide Chapter 4 Part 3 (p. 74) Flashcards
___________ is the mere putting of her testimony in question.
Impeachment
The inaccurate testimony could come from dishonesty, but it could also come from poor memory, poor perception, inaccurate portrayal of the facts, etc. Anything that casts doubt on the accuracy of the testimony is _______________.
Impeachment
What rule permits any party to impeach a witness, even his or her own witness?
Rule 607
While impeachment refers to challenging the credibility of a witness, ___________ is the opposite.
Bolstering
Unlike impeachment, however, a party may not ______ her witness until the witness has first been impeached.
Bolster
There are many methods by which a witness can be impeached. The methods include:
1. ?
2.
3.
4.
5.
6.
- Prior Inconsistent Statements
There are many methods by which a witness can be impeached. The methods include:
1.
2. ?
3.
4.
5.
6.
- Bias or interest
There are many methods by which a witness can be impeached. The methods include:
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2.
3. ?
4.
5.
6.
- Conviction of a Crime
There are many methods by which a witness can be impeached. The methods include:
1.
2.
3.
4. ?
5.
6.
Specific Instances of Misconduct
There are many methods by which a witness can be impeached. The methods include:
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2.
3.
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5. ?
6.
- Proof of reputation or opinion or
There are many methods by which a witness can be impeached. The methods include:
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2.
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5.
6. ?
- Sensory deficiencies
_________ ________ would include poor perception, memory, mental ability or the inability to narrate the facts accurately.
Sensory Deficiencies
Prior inconsistent statements are used as a mechanism to _______ a witness. Rule 613 governs this method of impeachment.
Impeach
Prior inconsistent statements are used as a mechanism to impeach a witness. Rule 613 governs this method of impeachment. The rule has 4 requirements:
1. ?
2.
3.
4.
- The statements must be inconsistent
Prior inconsistent statements are used as a mechanism to impeach a witness. Rule 613 governs this method of impeachment. The rule has 4 requirements:
1.
2. ?
3.
4.
- The inconsistency must be relevant to the case at hand.
Prior inconsistent statements are used as a mechanism to impeach a witness. Rule 613 governs this method of impeachment. The rule has 4 requirements:
1.
2.
3. ?
4.
- The inconsistent statement on request, must be disclosed to opposing counsel; the witness must be allowed to explain the inconsistency, and; opposing counsel must be allowed to question the witness rule 613(a).
Prior inconsistent statements are used as a mechanism to impeach a witness. Rule 613 governs this method of impeachment. The rule has 4 requirements:
1.
2.
3.
4. ?
And 4. the district court should instruct the jury about the limited purpose of the earlier statement.
If a witness is biased and/or has an interest in the outcome of the case, then that witness has a _____ to be less than ________.
Motive
Truthful
Evidence which shows the bias or interest, is not admitted for substantive purposes. That is, the evidence is not used to support or controvert an issue in the case. Rather, the evidence is only admitted to _______ the witness.
Impeach
Two examples of bias:
1.
2.
- Jailhouse snitch
- Scorned spouse
A con sharing the same cell with the defendant testifies about what the defendant told him one night. In exchange for testimony he gets a reduced sentence or some such benefit. Is he biased? ________. Evidence of this agreement could be admitted to illustrate how the witness might be biased.
Certainly
Frequently, one spouse has been wronged. It could have been as a result of many things, such as infidelity, mismanagement of money, hay si al or emotional abuse - you name it. In a divorce, for example the wronged spouse may have a reason to ______ his or her testimony. They have bias.
Twist
This is a fairly strong method of impeachment. Whether warranted or not. It’s the once a bad guy, always a bad guy mentality that many people possess. What does this refer to?
Conviction of a crime. Rule 609
The thought that once a person does something wrong, he or she will tend to do that same wrong again goes far beyond requiring that someone be convicted of a crime. Therefore, Rule ______ addresses the limited circumstances when a witness’s character for truthfulness may be attacked.
608(a)
Evidence of this kind is also contained in Rule 608. Howeve,r the second part of the rule 608(b) addresses specific instances of conduct. What does this refer to?
Proof of reputation or opinion
My cousin Vinny - the witness said she observed something from 50 feet away. He holds up a tape measure and goes 50 feet away and asks he how many fingers he is holding up and she guesses wrong. Pesci uses the demonstration to illustrate that her vision was bad. He challenges her capacity to _______ the ______. It was a very effective demonstration. This is a ________ ________.
Perceive the scene.
Sensory deficiency
Challenging a witnesses ________ is an acceptable way to impeach a witness.
Capacity
There are 4 ways in which capacity may be challenged:
1. ?
2.
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4.
- Perception
There are 4 ways in which capacity may be challenged:
1.
2. ?
3.
4.
- Memory
There are 4 ways in which capacity may be challenged:
1.
2.
3. ?
4.
- Narration
There are 4 ways in which capacity may be challenged:
1.
2.
3.
4. ?
- mental ability
As illustrated above, sometimes a witness has poor ___________ of the scene about which she testifies. It could be as a result of poor vision, poor location, bad lighting, physical impairment through drugs or alcohol, lack of sleep, or any other factor which impacts a witness’s ability to accurately perceive an event.
Perception
Sometimes, we just cannot remember events, or cannot remember the little details about the events, or we remember events inaccurate. Showing that a witness has misremembered one event, if presented property, can cast doubt on other events she narrates for the case. What does this refer to?
Memory failure
Sometimes we tell the story wrong. Example the telephone game. This is also one of the reasons we have rules regarding hearsay to try to eliminate these changes in story. What does this refer too?
Improper narration
It is important to remember that a lack of mental capacity does not, in and of itself, prevent a witness from bein competent to testify. On the contrary, a mentally incompetent person can testify is a judge believes that she is able to recall and narrate events accurately, and that she understands the difference betweeen telling the truth and a lie. Nevertheless, courts have permitted evidence of a ________ ________ for consideration of a witness’s ___________.
Mental diagnosis
Credibility
Experts to not need to have _________ __________. Nevertheless, they must have appropriate knowledge to testify with regard to a particular _________.
Personal knowledge
Field
Lay persons must have ______ ________ with the caveat that certain opinions are permissible.
Personal knowledge
Suppose that the case involves negligence, and the issue is who had the right of way at an intersection. Wendy testifies that on her way home from the store and she saw Danny run a red light. Suppose that you have information that she was coming home from something other than the store, can you impeach Wendy with evidence that she was not coming home from the store? Why?
No! This is a collateral matter that has nothing to do with what is in issue in the case. You are stuck with her story.
Attacking and Supporting the Declarant’s Credibility. What rule?
806
The significance of this rule is that even when the declarante does not testify, evidence may be admitted which contradicts (or impeaches) the declarant. What rule?
806
The other side of impeachment is _____________.
Rehabilitation
While one side wants to show a witness is not to be believed, the other side wants the fact-finder to believe the witness. There are several ways to rehabilitate a witness:
1. ?
2.
3.
- Redirect Examination
While one side wants to show a witness is not to be believed, the other side wants the fact-finder to believe the witness. There are several ways to rehabilitate a witness:
1.
2. ?
3.
- Reputation for Truthfulness
While one side wants to show a witness is not to be believed, the other side wants the fact-finder to believe the witness. There are several ways to rehabilitate a witness:
1.
2.
3. ?
Prior Consistent Statements
The most obvious (and common) method to __________ a witness is for the proponent of the witness to ask questions on _________ which would _________ the witness. This remits the witness to explain or expound on the prior testimony that was used to indicate her untruthfulness.
Rehabilitate
Redirect
Rehabilitate
Under Rule 608, only after a witness’s credibility for truthfulness has been attacked, then evidence of ________ _________ is admissible.
Truthful character
Generally, a party may not rehabilitate a witness by offering a _______ _________ that is consistent with her testimony.
Prior statement
Generally, a party may not rehabilitate a witness by offering a prior statement that is consistent with her testimony. There are exceptions:
1. ?
2.
- To rebut a charge of recent fabrications
Generally, a party may not rehabilitate a witness by offering a prior statement that is consistent with her testimony. There are exceptions:
1.
2. ?
- When the witness has been impeached on other non-character grounds
Peter alleges “Mary just made that up” but she didn’t. She said the same thing to Nancy a month ago. The former statement she made to Nancy may be admitted. Why?
To rebut a charge of recent fabrication or motive to lie
The statement had to have occurred before the alleged recent fabrication, or motive, occurred. What does this refer to?
Rebutting a charge of recent fabrication!
If a witness has been impeached on a ground other than recent fabrication or motive then if appropriate a court may allow testimony that controversy the impeachment. I.e.,
Rehabilitate the witness
Evidence of a prior consistent statement is not permitted to rehabilitate a witness whose _____________ _______ for truthfulness has been attacked. (For example: criminal convictions, reputation, or opinion testimony).
General character
Suppose that Office O’Reilly recognized Danny based one his tattoo. On cross-examination, opposing counsel tried to effectively impeach Officer O’Reilly with evidence of O’Reilly’s report that did not mention Danny tattoo. In order to __________ officer O’Reilly the prosecutor may offer evidence that he had previously mentioned the tattoo to another officer.
rehabilitate
As a general rule, in the absence of a proper _________, evidence will be admitted regardless of whether the evidence complies with the rule.
objection
Suppose one side offers evidence that is, without question, irrelevant. Unless the opposing party _______, the evidence will be admitted. Because a judge will not ______ _____ ________. Without an _______, there is nothing for the judge to rule on.
objects
object suas ponte
objection
___________ must be based on the proper rule and valid.
objections
Objections must be based on the proper rule and valid. Even then, judges often will overrule objections improperly. Nevertheless, those are issues for appeal. We are just focused on trial-level evidence at this stage. True!!
!!
Objections are typically made at one of three scenarios:
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2.
3.
- at trial
- at a hearing
- or at a deposition
Although the rules regarding objections made at trail and at a hearing are the same, in practice, judges tend to be more lenient in ________ because there is no jury present.
hearings
________ are presumed to be able to sift through permissible and impermissible evidence and make decisions based only on permissible evidence.
judges
Regardless of the setting, trial or hearing, _______ is critical.
timing
Generally, __________ must be made at the first available time.
objections
IN other words, as soon as an objectionable question is asked or an objectionable answer is anticipated, an _________ _______ _____ _______ that is before an answer is given if possible.
objection must be made
If not possible to object before the answer is given, as soon as another is given. What does this refer to?
objections must be made at the first available time.
If properly made after an answer is given, ________ (________) by the judge, then the objecting party must make an oral motion to strike the answer.
sustained (granted)
If properly made after an answer is given, sustained (granted) by the judge, then the objecting party must make an oral _______ ______ _______ the answer.
motion to strike
Failure to object timely will mean that a judge may properly ______ the objection.
overrule
________ __________ being a form of discovery are governed by Rule 30 of the FRCP.
oral depositions
In ________ ________, objections to the form of the question must be made during the __________ or they will be waived.
oral deposition
deposition
In oral depositions, objections to the form of the question must be made during the deposition or they will be ________.
waived
An objection to the form of the question would be for example _______ _______ or that the question calls for _______.
overly broad
hearsay
Additionally, an objection based on _______ must be made at the deposition or they will be deemed waived.
privilege
There are two types of objections:
1.
2.
- general
- specific
__________ _________ are vague and over broad.
General objections
_________ ________ do NOT preserve error. That is, if a _________ _________ is made and overruled (denied), then the _________ will be deemed meaningless on appeal and insufficient to preserve appeal. An appellate court cannot review it.
general objections
general objection
objection
If a _______ ______ is made and sustained (granted), then the objection will be upheld on appeal. That is, an appellate court will presume that the objection was made on proper grounds.
general objection
__________ _________ state the basis of the objection to the point that the court and opposing counsel know why the objection was made.
specific objections
Example of an objection made pursuant to Rule ______might look like this, “Objection, your honor. The probative value of the photograph is substantially outweighed by the prejudicial effect seeing the bloody scene would have on the jury. The same information can be obtained through oral testimony.
403
If a _______ _______ is made and sustained, then the objection, if made on the proper grounds or basis, will be upheld on appeal.
specific objection
Objection speculation refers to what rule?
Rule 602 Personal Knowledge
_________ in the old days the device was a means to preserve error such that an appellate court could review the trial court’s ruling. No more at the federal level and most state courts have abolished the use of this term as well.
exception
An _____ ____ ______ is a method of preserving a specific kind of error.
offers of proof
An offer of proof is a method of preserving a specific kind of error. This is governed by what rule?
103(a)(2)
When a court has excluded evidence, the offer of proof is a means by which the excluded evidence is inserted into the appellate record for the higher court to review. True or False.
True
Three basic ways to make offers of proof:
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2.
3.
- Oral Testimony
- Offer by Counsel
- Documentary Offer
An offer of proof may be made by oral testimony from a live witness. In this circumstance, the ______ is not present. In a bench trial, the judge need not be present.The only critical person is the ______ _______ who will take down the testimony which will go into the record for appellate court review.
jury
court reporter
The expert witness would testify from the witness stand by responding to questions from the attorney proffering the evidence. What does this refer to?
Offer of Proof by Oral Testimony
A lawyer may read into evidence, in narrative form, what the testimony would have been if the witness had been able to testify. What does this refer to?
Offer of Proof by Offer by counsel
An exhibit has been properly marked and authenticated, if necessary, is admitted as an ______ ____ _____.
offer of proof
If the expert had repaired a report, the report could be tendered as documentary evidence for her findings. What does this refer to?
Offer of proof.
