Testimonial Evidence

Question 1

Requirements for Being a competent Witness

1. ) Requirements for Being a competent Witness
2. ) Witness admits to being an atheist a nd states he does not believe he will be punished by God if he lies. Is the witness competent?
3. ) Three year old says she saw the accid ent and promises to tell “what really happened and not make-up something.” Witness competent?
4. ) Witness was convicted of perjury and psychiatrist says witness is insane, a pathological liar, and a member of Congress. Witness competent?
5. ) During investigation of the case, police hypnotized witness to help him recall what he saw. Witness competent?

Answer 1

1. Personal knowledge
2. Present recollection . Witness must testify from present recollection, not from some record regarding matters the witness once knew but has now forgotten
3. Communication. Witness must be able to relate perception either di rectly or through interpreter.
4. Sincerity. Witness must take oath or ma ke affirmation to tell truth.

Almost all other grounds for disqualificati on have been abolished. Only the judge and the jurors are absolutely disqualified from testifying.

2. ) Yes. Disbelief in God is fine in court.
3. ) Yes
4. ) Yes
5. ) Yes

Question 2

Witness Competency

1. ) Murder prosecution. Witness testifies she dreamed defendant committed the crime. Admissible?
2. ) Witness is blind and bases testimony on what she heard someone else say. Proper objection? (Hint: Did witness perceive Defendant shooting or did witness perceive a statement being made?)
3. ) Same case. Witness testifies, “The sheriff told me that the defendant shot the victim.” Proper objection?
4. ) Murder prosecution. Witness testifies he saw the defendant shoot the victim, but admits lighting was poor. Admissible?

Answer 2

1. ) Personal knowledge. No witness must have seen, heard, smelled in relation to the facts. (Witness is incompetent). (Distinguish hearsay objection from personal knowledge objection)
2. ) Distinguish between personal knowledge & hearsay objections. Does the fact testified to = the fact perceived? Is a personal knowledge objection because the witness is testifying about something they can’t even perceive.
3. ) Hearsay. She has personal knowledge that the Sheriff said it
4. ) Yes. Perceptions may be limited. Low burden of proof to show personal knowledge.
5. )

Question 3

Objections to form of testimony and questions

1. ) Objections require what or else they are waived?
2. ) Antitrust litigation. Plaintiff’s witness was at meetings where defendants fixed prices. Counsel asks “Tell us what happened at each of those meetings.” Witness rambles for an hour , describing how defendants used drugs and tortured puppies while fixing the price of widgets. What’s the proper objection?
3. ) Same case. Plaintiff’s attorney asks witness, “Was price discussed at the meetings?” Witness answers, “They spent most of the time torturing puppies.” Objection?
4. )Same case. Plaintiff’s attorney calls plaintiff and, on direct exam, asks, “Isn’t it true that defendants have been fixing prices?” Objection?
5. ) Same case. On cross-exam, defense counsel asks plaintiff, “Isn’t it true that you had your fingers crossed when you swor e to tell the truth?” Is this leading? Is it improper?
6. ) Same case. Plaintiff calls defendant and, on direct exam, asks “Isn’t it true that you wrote the book “Price Fixing for Fun and Profit?” Improper leading question?
7. ) Suit for divorce. Assume no evidence has yet been offered on physical abuse. Wife’s counsel asks, on cross of husband, “When did you stop beating your wife?” Proper objection?
8. ) Same case. Husband testifies th at since his wedding he has never even looked at another woman. On cross, wife’s counsel asks “Do you expect the jury to believe that baloney?” Proper objection?
9. ) Same case. On cross-exam, wife’s counsel asks “Isn’t it true that you cheated on your wife and beat her?” Proper objection?

Answer 3

1. ) Need for timely and specific objection or else the objction is waived.
2. ) Calls for narrative. Witnesses don’t understand what may be prejudical
3. ) Unresponsive. Can make a motion to strike it if you are the questioning party
4. ) Usually no leading on direct.
5. ) Leading OK on cross. (However, the leading must stary within the scope of direct)
6. ) Leading OK on direct if adverse witness, hostile witness, witness needing help. No, it is an adverse witness
7. ) Assumes facts not in evidence.
8. ) Argumentative. It wasn’t really seeking an answer.
9. ) Compound. Give witness time to answer the question of we won’t know which one they are answering.

Question 4

Witness use of documents during testimony

1. ) Doctor states she has seen so many patients she can’t recall plaintiff. Counsel shows doctor the emergency room records and doctor states “It says here plaintiff suffered a broken keester.” Objection?
2. ) Same case. Doctor says she can’t recall plaintiff. This time counsel asks doctor if seeing hospital records might refresh her memory. The doctor answers yes and counsel hands her the records. The doctor silently reads records and hen says, “Now I remember. He had a broken keester.” Is this permissible?
3. ) Same case. To refresh doctor’s ecollection, counsel hands her Exhibit A, plaintiff’s broken keester. Permissible?
4. ) . Same case. To refresh the doctor’s recollection, counsel hands her a note stating, “The correct answer is ‘a broken keester.’” Does the direct examiner now have a problem?
5. ) Same case. Doctor reads the emergency room report but still can’t remember plaintiff’s case. What should plaintiff’s counsel do?

Answer 4

1. ) Hearsay. How do you get around it?
2. ) Yes. Refreshing recollection.

Yes

3. ) Yes, Anything can be used to refresh recollection.
4. ) The opponent may inspect and offer into evidence anything used to refresh. Yes becuse anything offered must be entered into evidence for jury???
5. ) Recorded recollection exception to hearsay rule

Elements of the Exceptions:

a. The witness once had personal knowledge of the facts.
b. The document was made by the witness or under the witness’ direction or was adopted by the witness. Adoption = another person made the record and witness did or said something to indicate she agreed with contents.
c. The document was written or adopted at a time when the facts were fresh in the witness’ memory.
d. The document was accurate when made.
e. The witness now has insufficient recollection to testify as to the matters contained in the document.

Prove these elements and you can read the document to the jury

Question 5

Opinion Testimony

1. ) When is lay opinion admissible?
2. ) Action for injuries in auto collision. Witness testifies, “In my opinion the car was going about 80 miles per hour. I got a good look at it.” Is this (i) based on witness’ perception, (ii) rationally based, (iii) helpful to the jury?
3. ) Under above test, lay opinion permitted as to what?
4. ) Same case. Witness testifies, “In my opinion, defendant was driving negligently.” Admissible?

Answer 5

1.) Admissible if rationally based on the witness’ perceptions and helpful to the trier of fact. Cannot be based on scientific or other specialized knowledge.

“Helpful” = the lay opinion gives jury MORE information than would testimony limited to describing witness’ perceptions.

2.) perception-they saw it

“rationally” = (there’s a logical connection between the perception and the opinion)

Helpful”- detail helps jury

3. ) speed of auto, sanity, intoxication, emotions, value of witness’ property.
4. ) No! Legal conclusions are not “helpful” because they give jury LESS information than testimony describing witness’ perceptions.

Question 6

Opinion Testimony

1. ) 5 requirements for expert opinion admissibility?
2. ) Murder prosecution. PhD in criminology offers opinion that, based on fact defendant’s fingerprints were on murder weapon, defendant must be guilty. Helpful? Compare: Fingerprint expert offers opinion that the prints on the weapon match defendant’s fingerprints. Helpful?
3. ) Murder prosecution. Victim died when a toilet exploded. Defense claims it was an accident. Prosecution calls a plumber, who quit school after the sixth grade, to testify that, based on twenty years of professional experience with toilets, it is impossible for one to explode accidentally. Admissible, even though witness lacks a PhT? What if the plumber offers an opinion as to cause of death?
4. ) Same case. Physician testifies for defense that victim may have died of a drug overdose before toilet went ballistic. But Dr. admits this is speculation and that he is uncertain. Is the opinion admissible?

Answer 6

1.) Opinion must be:

• (i) helpful to jury,
  
  • Helpful = expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.
• (ii) witness must be qualified,
• (iii) witness must believe in opinion to reasonable degree of certainty,
• (iv) opinion must be supported by a proper factual basis, and
• (v) opinion must be based on reliable principles that were reliably applied;

2. ) Nooo; Yes
3. ) Qualifications. (Yes; NO) You can be qualified to be an expert based on Experience. Don’t need an academic credential. However, need to be qualified in the specific field youre giving testimony about.
4. ) Degree of Certainty. No expert can admit to some doubt but at least must have a resonable degree of certainty otherwise it is speculation.

Question 7

Expert Opinion Testimony

1. ) Experts opinion must be based on what following facts?
2. ) Same case. Prosecution calls police forensic scientist who investigated crime scene. May she base an opinion on what she saw at the scene?
3. ) Same case. Prosecution calls Dr. Bidet, the famous French expert on exploding toilets. Dr. Bidet has no personal knowledge of the facts. May he base opinion on already admitted testimony of police forensic scientist?
4. ) Same case. Prosecution calls pathologist whose knowledge is based on a lab report that has been ruled inadmissible hearsay. After testifying she customarily relies on such reports when rendering professional opinions at the hospital where she works, pathologist then offers opinion as to victim’s cause of death. Admissible?

Answer 7

1. ) (i) admitted evidence
   (ii) personal knowledge,
   (iii) inadmissible evidence reasonably relied upon.
2. ) Yes. Personal Knowledge
3. ) Yes. The testimony has been admitted. NOTE: If expert gives testimony on already admitted testimony their opinion must be based on the admitted testimony.
4. ) Yes even though it is based on inadmissible evidence.

Question 8

Expert Opinion

Expert opinion must be based on reliable principles

1. ) Murder prosecution. Defendant is Professor Gold. Prosecution expert testifies that a new DNA testing technique reveals perpetrator must be a bald law professor. While the validity of the technique is not generally accepted among scientists in the field of genetics, it has been peer reviewed and published in scientific journals, has been tested and is subject to retesting, has a low error rate, and has a reasonable level of acceptance. Admissible?
2. ) Same case. Pathologist admits her opinion has logical inconsistencies, she did not consider other pertinent evidence or alternative explanations. Admissible?
3. ) LT is admissible to prove anything stated therein if it is an accepted authority in field. Same case. Prosecution’s toilet expert testifies that it’s impossible for a toilet to explode accidentally. On crossexamination, defense reads from page 747 of volume 6 of Professor Plunge’s seminal work, On The Toilet, which states “Toilets have been known to explode accidentally in seismically active areas.” Admissible?

Answer 8

1. ) Yes. Under Federal Law you don’t need to show that the expert opinion is based on a generally accepted principle. The things in italics is whats looked at by Federal Courts.
2. ) No.
3. ) Yes. It’s hearsay but you can read from the book if it’s a Learned treatise hearsay exception.

Question 9

Evidence of Witness Credibility

1. ) Murder prosecution. Defense alibi witness testifies defendant was with him at the movies when murder occurred. Prosecution does not cross-examine. To support credibility, defense offers evidence that the alibi witness gave a consistent statement to the police shortly after defendant was arrested. Admissible?
2. ) Same case. The witness gives the alibi testimony. On crossexamination, prosecutor asks witness, “Didn’t defendant give you a bribe of $1000 last week?” On redirect, is evidence of witness’ consistent statement (supporting the alibi) made yesterday admissible? A consistent statement made two weeks ago?

Answer 9

1. ) No. Evidence to support credibility. Inadmissible unless credibility is attacked first.
2. ) Prior consistent statement is not hearsay and admissible for all purposes if made before bribe or inconsistent statement. Otherwise, it is inadmissible for any purpose. The consistent statement (of being with defendant) made yesterday is not admissible but the consistent statement (of being with D at the movies) made before the bribe is admissbile.

Question 10

Evidence of Witness Credibility

Impeachment.

Three step approach to admissibility of impeachment evidence:

• (i) Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
• (ii) If extrinsic, is it admissible given impeachment technique?
• (iii) Any other foundation requirements?

1.) Definition of Extrinsic Evidence:

Answer 10

1.) Any evidence other than testimony given at this proceeding by the witness being impeached. E.G., extrinsic evidence = testimony of other witnesses, writings, prior statements of the witness who is now testifying .

Question 11

Evidence of Witness Credibility

Impeachment

Different Ways to Impeach:

Answer 11

• Impeachment by Contradiction
• Impeachment by Prior Inconsistent Statement (PIS
• Impeachment with Evidence of Bias, Interest, Motive.
• Impeachment with Conviction for Crime Involving False Statement
• Impeachment wit_h Conviction for a Crime Not Involving False Statement_
• Impeachment with Non-Conviction Misconduct Evidence Bearing on Truthfulness.
• Impeachment with Reputation and Opinion Regarding Truthfulness. Extrinsic evidence admissible

_ _

Question 12

Evidence of Witness Credibility

Impeachment

1. ) What is a collateral issue?
2. ) Is Extrinsic evidence inadmissible to contradict on collateral matter?
3. ) Murder prosecution. Prosecution witness testifies he saw the crime at 3 a.m. while coming home after a visit with his grandma. Can defense call witnesses to testify that the prosecution witness really was visiting his mistress?
4. ) Same case. Prosecution witness claims he saw the murder while on his wayhome from his grandma’s. Defendant offers testimony of another witness that prosecution witness really was on his way home from a bar, where he hadspent the preceding six hours drinking heavily. Admissible?
5. ) Action for personal injuries in auto accident. Plaintiff’s witness testifies that defendant ran red light. On cross-exam, defendant asks, “Didn’t you tell the police that defendant had the green light?” Witness answers, “Yes.” What is this relevant to prove? What is this admissible to prove?
6. ) Same case. Plaintiff’s witness testifies defendant ran the red light. On cross, defendant asks “Didn’t you testify at your deposition that defendant had the green light?” The witness answers “Yes.” What is this admissible to prove?
7. ) Same case. Witness denies giving the inconsistent deposition testimony about the green light. Defendant offers the deposition transcript. Admissible?
8. ) Same case. Defendant does not cross witness about his deposition testimony. Witness is then excused. During his case-inchief, defendant offers the pertinent portion of witness’ deposition transcript. Admissible?
9. ) Prosecution for drug dealing. On cross-exam of prosecution witness, defense asks, “Isn’t it true that you were also arrested for drug dealing but offered a plea bargain if you testified against defendant in this case?” The witness answers “Yes.” Admissible?
10. ) Same case. Witness denies being offered a plea bargain. Defendant offers the plea bargain agreement. Admissible?

Answer 12

1. ) Collateral matter = a fact not material to the issues in the case that says nothing about witness’ credibility other than to contradict the witness.
2. ) No
3. ) No. It’s not material to the issues in th case.
4. ) Impeachment by Contradiction Yes. It’s not a collateral matter anymore because this extrinsic evidenc tells us something about the witnesses credibility
5. ) Impeachment by Prior Inconsistent Statement (PIS). Yes witness has changed their story. Inadmissible to prove defendant had to green light because its hearsay. Admissible to just show the impeachment.
6. ) (PIS) of witness who testifies at trial = not hearsay if given under oath at trial or deposition. Here, it can prove everything that he is lying and that D had the green. Otherwise = hearsay and inadmissible if offered to prove truth.
7. ) Extrinsic evidence of PIS inadmissible to impeach on collateral matter. Yes because here its not going to a collateral matter. Here we are trying to prove who ran the light.
8. ) Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny. (No because witness wasn’t given a chance to explain or deny the evidence)
9. ) Impeachment with Evidence of Bias, Interest, Motive.
10. ) Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny

Question 13

Evidence of Witness Credibility

Impeachment

1. Prosecution for drug dealing. On cross-exam of prosecution witness, defense asks, “Isn’t it true that you were also arrested for drug dealing but offered a plea bargain if you testified against defendant in this case?” The witness answers “Yes.” Admissible?
2. ) Same case. Witness denies being offered a plea bargain. Defendant offers the plea bargain agreement. Admissible?

Answer 13

1. ) Impeachment with Evidence of Bias, Interest, Motive. (Yes, it shows D has a motive)
2. ) Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny. (Yes, we gave him a chance to explain or deny and he had a chance to admit)

Question 14

Evidence of Witness Credibility

Impeachment

1. ) Rule: Impeachment with Conviction for Crime Involving False Statement.
2. ) Prosecution for tax fraud. Defendant testifies and admits his tax return did not report all his income, but claims this was unintentional. Prosecution offers evidence that Defendant previously was convicted of filing a false police report. Admissible to prove Defendant has the character of a liar and, thus, intentionally lied on his tax return?
3. ) Same case. Is the conviction admissible to impeach Defendant’s credibility as a witness? Does it matter if it was a felony or misdemeanor?
4. ) Same case. Does the court have the discretion to exclude the conviction evidence for all purposes since it would cause unfair prejudice if the jury uses it to infer Defendant lied on his tax return?
5. ) Rule for Impeachment with Conviction for a Crime Not Involving False Statement.
   6) Same case. Prosecution offers evidence that Defendant was previously convicted of rape, a felony. Admissible to impeach him as a witness? Can the court exclude for unfair prejudice?
6. ) Same case. Prosecution offers evidence that Defendant was previously convicted of disorderly conduct, a misdemeanor. Admissible?
7. ) Final points on Conviction Impeachment.
8. ) Bank robbery prosecution. Defendant testifies, denying involvement. Prosecutor offers a copy of a judgment showing defendant was released from prison in 1988 after serving time for felony perjury. Admissible?

Answer 14

1. ) All convictions (felonies and misdemeanors) for crimes of false statement (e.g. perjury, forgery, fraud) are admissible. No balancing of unfair prejudice against probative value except for convictions more than 10 years old (see top p. 22).
2. ) No because the question being posed here has nothing to do with impeachment. This is character evidence and the door is closed. Cant ask questions about speciifc stuff.
3. ) Yes because it is being used to impeach.; No because the law is the same if it is a law concerning lying.( If witness has been convicted in past of crime regarding lying then they may be a liar here. Character evidence can have two seperate purposes. 1.) to show D did the conduct (not admissible) 2.) to show witness isnt credible
4. ) No. This is the one instance where the usual “balance test” does not come into play. No balancing unless it is an old conviction.
5. ) Felonies that do not involve false statement (e.g., murder, robbery, rape) may be admissible to impeach but court may exclude for unfair prejudice. Misdemeanors that do not involve false statement are inadmissible to impeach.
6. ) Possibly; Yes court can do “balancing test” because the crime doesn’t deal with a lie.
7. ) No only kind a misdemeanor that can be admitted is a crime of lying.
8. ) If the conviction is otherwise admissible under the above rules, the conviction may be proved with extrinsic evidence. If the conviction is otherwise admissible under the above rules, but it is more than 10 years since the date of conviction or release from prison (whichever is later), it is inadmissible unless probative value outweighs unfair prejudice.
9. ) Probably Not because it is over 10 years old unless party offering the evidence can show probative value outweighs unfair prejudice

Question 15

Evidence of Witness Credibility

Impeachment

1. ) RUle: Impeachment with Non-Conviction Misconduct Evidence Bearing on Truthfulness.
2. ) Action for breach of contract. On cross of plaintiff, defense asks “Isn’t it true that you lied on your driver’s license application?” Plaintiff answers, “Yes.” Admissible?
   3) Prosecution for bank robbery. Defendant testifies and denies involvement. Prosecutor asks defendant about lying on his driver’s license application but defendant denies it. Prosecutor offers the application. Admissible?
3. ) Same case. Prosecutor asks defendant if he stole office supplies at work. Defendant admits to the theft. Admissible?
4. ) Rule: Impeachment with Reputation and Opinion Regarding Truthfulness.
5. ) Personal injury action. Plaintiff testifies he suffers back pain because of the accident. Defense witness testifies he lives in plaintiff’scommunity and has known plaintiff for years. Witness testifies that he believes plaintiff is a liar and is known in the neighborhood as “Shifty.” Admissible?

Answer 15

1. ) Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross-examine witness about her misconduct.
2. ) Yes
3. ) No. Because it is extrinsic evidence
4. ) No it is not an act of lying. THeft is not lying!
5. ) Extrinsic evidence admissible.
6. ) Yes this opinionand reputation evidence going to the witness.