Testimonial Evidence

Question 1

Competency

Answer 1

Testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability
* Witnesses are generally presumed to be competent

Competency qualifications - to be competent, W must have:
1. Personal knowledge - W’s testimony must be based on her own perceptions (e.g., what W saw or heard)
2. Memory - W must have the ability to remember (e.g., must not have amnesia)
3. Communication - W must be able to relay her perceptions, either directly or through an interpreter
4. Sincerity - W must take an oath or affirm to tell the truth

• Diminution of any of the above capacities usually goes only to the weight of testimony (i.e., makes W less persuasive)

Question 2

Use of Documents by Witness During Testimony

Answer 2

Present recollection refreshed - use of documents to refresh W’s memory during testimony
* Anything can be used to refresh W’s memory
* W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
* Opponent may inspect and offer into evidence anything used to refresh W’s memory
* Document is not read into evidence (distinguish from recorded recollection)

Recorded recollection - contents of a document W previously wrote or adopted is read into evidence
* Requirements:
1. W once had personal knowledge of facts comprising the recorded recollection;
2. Document was written or adopted by W;
3. W wrote or adopted the document when its contents were fresh in W’s memory;
4. W’s memory is insufficient to testify as to the document’s contents (i.e., present recollection refreshed was ineffective); and
5. Document was accurate at the time it was made

• Note - recorded recollection is a hearsay exception; as such it may be admitted in to evidence (distinguish from present recollection refreshed)

Question 3

Objections to Form of Question or Testimony

Answer 3

Form of question objections:
1. Calls for narrative - non-specific, open-ended question that allows W to tell a story rather than give specific testimony in response to specifically asked questions
2. Leading - question itself suggests the answer, improper on direct unless W is hostile or an adverse party; acceptable on cross-exam
3. Assumes facts not in evidence - question makes an assumption which has not been established on the record
4. Argumentative - a question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion
5. Compound - question that asks more than one question at a time; attorneys must ask questions individually
6. Beyond scope of direct - arises on cross-exam
* Attorneys must confine their questions during cross-exam to the scope of direct (i.e., they cannot ask questions involving matters not discussed on direct

Testimonial objections:
1. Unresponsive / nonresponsive - W’s testimony does not relate to or directly answer the question asked

Note - these objections must be specific and promptly made; otherwise they are deemed waived

Question 4

Lay Opinions

Answer 4

Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion

Lay opinion requirements - opinion testimony is admissible if it is:
1. Rationally based - opinion is rationally based on W’s perception
2. Helpful - opinion is helpful to the trier of fact
* I.e. gives the jury more information regarding W’s perception than the perception alone
* Legal conclusions are inadmissible b/c they are deemed unhelpful
3. Not expert - not based on scientific, technical, or other specialized knowledge (i.e., not in the realm of expert opinion

Examples of admissible lay opinion testimony
* Speed of car
* Emotional state of an individual
* Voice or handwriting recognition
* Sense recognition
* Intoxication

Question 5

Expert Opinions

Answer 5

Experts may provide opinions on facts or issues in the case

Expert opinion requirements - expert testimony is admissible if:
1. Helpful - expert opinion must be helpful to the trier of fact
2. Qualified - expert must possess special knowledge, skill, experience, training, or education
3. Reasonable certainty - expert must believe in her opinion to a reasonable degree of certainty
4. Proper factual basis - opinion must be based on facts
* Expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (e.g., data, other testimony, experience)
5. Reliable principals reasonably relied upon
* Scientific evidence - if expert opinion is based on science, court also considers whether evidence is:
* Peer tested and capable of retesting;
* Published;
* Has a low error rate; and
* Reasonably accepted in the field of study

Scope - experts may render an opinion on any ultimate legal issue
* Exception - experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense