Testimonial Evidence Flashcards
Testimonial Evidence: Witness Competency
Testifying witnesses must be competent (and are generally presumed so)
Testimonial Evidence: Witness Competency Qualification
To be competent, witness must have:
- personal knowledge
- memory (cannot have amnesia)
- ability to communicate
- sincerity (take oath to confirm truth)
- Diminution makes witness less persuasive
Testimonial Evidence: Excluding Witnesses
Under a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony
Does NOT apply to parties or party representatives (where party is an entity)
Use of Documents by Witness During Testimony: Present Recollection Refreshed
- Anything can be used
- Witness cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
- Opponent may inspect and offer into E anything used to refresh
- Document is NOT read into E
Use of Documents by Witness During Testimony: Recorded Recollection
Requirements:
- W once had knowledge
- W’s memory is insufficient to testify as to the record’s contents (i.e. present recollection refreshed was ineffective)
- Record was made or adopted by W when matter was fresh in their mind
- Record accurately reflects W’s knowledge
- MAY be read into E
Testimonial Evidence: Expert Opinions (Admissibility)
Expert testimony is admissible if it is;
- helpful (use expertise to reach conclusions average juror would not reach alone)
- qualified (possess special knowledge, skill, experience, training, or education)
- based on an opinion held to a reasonable degree of certainty
- based on proper factual bases (can be admitted E or inadmissible E properly relied on)
- based on reliable principals reasonably relied upon (e.g. if scientific, whether E is published, has low error rate, peer tested, capable of replication, etc.)
Testimonial Evidence: Expert Opinions (Scope)
Experts may render an opinion on any ultimate legal issue EXCEPT D’s mental state in a criminal case where that is an element of a crime or defense
