Testimonial Evidence Flashcards
Witnesses who testify must pass tests of basic reliable to establish what?
To establish their competency to give testimony.
Are witnesses presumed to be competent?
Yes, until the contrary is established.
Witness must possess some degree of four basic testimonial attributes. What are they?
The capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
What happens if a witness requires an interpreter?
The interpreter must be qualified and take an oath to make a true translation.
Most jurisdictions and the federal rules have removed the common law witness disqualifications for what reasons?
Lack of religious belief, conviction of a crime, and interest in the lawsuit.
When is an infant incompetent or competent to testify? Who determines this?
Depends upon the capacity and intelligence of the particular child as determined by the trial judge.
When may an insane person testify?
The person must understand the obligation to speak truthfully and has the capacity to testify accurately.
Are judge and jurors capable of testifying?
No. A judge may not testify as a witness in a case in which she is presiding. Likewise, jurors are incompetent to testify before the jury in which they are sitting.
What is a dead man act?
A party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
When is a person “interested” for purposes of a Dead Man’s Act?
If he stands to gain or lose by the judgement or the judgement may be used for or against him in a subsequent action. A predecessor in interest of the interested party is also disqualified.
When/how does one apply a Dead Man Act under Fed’l Law?
There’s no federal Dead Man’s Act, but a state Act will apply in Federal cases where state law, under the Erie doctrine, provides the rule of decision (ex. diversity cases).
Why can a judge exercise reasonable control over the examination of witnesses?
In order to aid the ascertainment of truth, to avoid wasting time, and to protect witness from harassment.
Leading questions are general improper when?
On direct examination.
When are leading questions permitted?
On cross-examination, to elicit preliminary or introductory matters, when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or when the witness is hostile.
What are improper questions?
Misleading questions (that cannot be answered without making an unintended admission), compound questions, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for narrative answer or speculation, or assume facts not in evidence are improper and are not permitted.
What are improper answers that may be stricken?
Answers that lack foundation (witness lacks personal knowledge) and answers that are nonresponsive.
Can a witness use a memorandum while testifying?
A witness CANNOT read her testimony. But a memorandum may be used in certain circumstances.
What may a witness use to REFRESH recollection?
A witness may use any writing or things. But they usually may not read from the writing while actually testifying.
Why can’t a witness read while refreshing their recollection?
Because usually the the writing is not authenticated and not in evidence.
When can a writing/thing be admitted into evidence? How is it made available to the jury?
When a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after consulting a writing. The writing must have proper foundation laid. IT CAN ONLY BE READ INTO EVIDENCE
What does the foundation of a writing for RECORDED recollection require?
(1) The witness at one time had PERSONAL KNOWLEDGE of the facts in the writing;
(2) the writing was MADE BY THE WITNESS or under her direction or it was adopted by the witness;
(3) the writing was TIMELY made when the matter was fresh in the witness’ mind
(4) the writing is ACCURATE; and
(5) the witness has INSUFFICIENT RECOLLECTION to testify fully and accurately.
What is the difference between the Fed’l Rule and KS Rule regarding recorded recollections?
In KS, the court permits the admission of past recollections recorded as an EXHIBIT while the Federal Rule only allows it to be READ to the jury.
If a witness uses a writing to refresh her memory, what is the adverse party entitled to?
They are entitled to have the writing produced at trial, to cross-examine the witness on the writing, and to introduce portions relating to the witness’s testimony into evidence.
Opinion testimony - generally admissible or inadmissible?
Generally INADMISSIBLE except in cases where the courts are sure that it will be necessary or at least helpful.
