Testimonial Evidence

Question 1

Witness 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
* Dimmunitions of any of the above capacities usually goes only to the weight of the testimony (i.e. makes W less persuasive)

Question 2

Excluding witnesses

Answer 2

Upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony
-Does not apply to parties or party representatives (e.g. where party is a non person entity)

Question 3

Present recollection refreshed

Answer 3

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)

Question 4

Recorded recollection

Answer 4

Contents of a record/document W previously made or adopted is read into evidence
* Requirements:
1) W once had personal knowledge of the record’s subject matter;
2) W’s memory is insufficient to testify as to the record’s contents (i.e. present recollection refreshed was ineffective)
3) Record was made or adopted by W when the matter was fresh in W’s memory; and
4) Record accurately reflects W’s knowledge
* Note: recorded recollection is a hearsay exception; as such it may be admitted into evidence (distinguish from present recollection refreshed)

Question 5

Calls for narrative

Answer 5

Non-specific, open ended question that allows W to tell a story rather than give specific testimony in repsonse to specifically asked questions

Question 6

Leading

Answer 6

• Question itself suggests the answer; improper on direct unless W is hostile or an adverse party;
• Acceptable on cross exam

Question 7

Assumes facts not in evidence

Answer 7

Question makes an assumption which has not bee established on the record

Question 8

Argumentative

Answer 8

A question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion

Question 9

Compound

Answer 9

• Question that asks more than one question at a time
• Attorneys must ask questions individually

Question 10

Beyond scope of direct

Answer 10

• 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)

Question 11

Testimonial objections

Answer 11

Unresponsive/nonresponsive: W’s testimony does not relate to or directly answer the question asked

Note: all of these objections to form of question or testimony must be specific and promptly made; otherwise they are deemed waived

Question 12

Lay opinions

Answer 12

• Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion
• Requirements:
  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 because 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)

Question 13

Examples of admissible lay opinion testimony

Answer 13

• Speed of a car
• Emotional state of an individual
• Voice or handwriting recognition
• Sense recognition
• Intoxication

Question 14

Expert opinions

Answer 14

• Experts must provide opinions on facts or issues in the case
• Requirements: expert testimony is admissible if:
  1) Helpful: must be helpful to the trier of fact
  -i.e. expert uses specialized knowledge to reach conclusions an average juror would not reach alone
  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) Property factual basis: opinion must be ased on facts
  -Expert may based opinon on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (i.e. data, other testimony, experience)
  5) Reliable principals reasonably relied upon
  -Scientific evidence: if expert opinion is based on science, court also considered whether evidnce is:
  i. Peer tested and capapble of retesting;
  ii. Published
  iii. Has a low error rate; and
  iv. Reasonably accepted in the field of study

Question 15

Expert opinions-Scope

Answer 15

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