Testimonial Evidence Flashcards
Competency
basic requirements: must have capacity to observe, recollect, communicate, and swear or affirm to tell the truth
CA: Witness must understand legal duty to tell the truth. Oath is not enough.
Personal Knowledge
Fact testified to must be the fact perceived. Hearsay issues. Reasonable Person standard used.
Infancy
competency of an infant depends on capacity and intelligence of the particular child as determined by a judge
insanity
may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately
Judge and Jurors
presiding judge MAY NOT testify as a witness. Jurors are also deemed incompetent to testify before the jury in which they are sitting
CA: may do so if no objection
Possible objections to form of testimony
Objections are waived if not timely and specific
Calls for narrative;
unresponsive (goes beyond a simple Yes/No if that is the scope of the question or does not answer the specific question asked);
assumes facts not in evidence; argumentative;
compound (requiring a single yes/no answer to more than one question);
misleading (cannot be answered w/o making an unintended admission);
lack foundation (W has insufficient personal knowledge);
unduly harassing or embarrassing;
leading (question that suggests the answer)
Leading Questions
Generally improper on direct and allowed on cross. Also allowed to:
(1) elicit preliminary or introductory matter
(2) when the witness needs aid to respond because of loss of memory, immaturity, or physical/mental weakness; or
(3) when the W is hostile
Refreshing Recollection
W may use ANY writing or thing for the purpose of refreshing her PRESENT recollection
W MAY NOT read from the writing while she actually testifies
Document need not be authenticated and admitted into evidence. However, adverse party is entitled to have the writing produced, cross examine, etc.
No hearsay problem b/c not offered into evidence
Past Recollection Recorded
Exception to hearsay rule essentially
When W states she has insufficient recollection of an event to enable her to testify fully and accurately, even after refreshing recollection, the writing itself may be READ INTO EVIDENCE if a proper foundation is laid. Requires:
(1) W had personal knowledge of the facts in the writing at one time
(2) Writing was made by the witness or under her direction,
(3) writing was timely made when the matter was fresh in the W’s mind;
(4) the writing is accurate (W testifies it is accurate); and
(5) the W has insufficient recollection to testify fully and accurately
Lay Witness Opinion Testimony
Generally inadmissible. BUT, admissible if:
(1) rationally based on the W’s perception,
(2) helpful to a clear understanding of his testimony or a fact in issue,
(3) not based on scientific, technical, or other specialized knowledge
Legal conclusions are NOT “helpful” (negligence, agent)
ex: appearance of a person (old, ill), state of emotion (angry, distraught) of a person, sense recognition (heavy, smelled of gas), voice or handwriting (sounded likeM Mark), speed of an object (Fast, about 60), value of his own services, rational nature of another’s conduct (crazy, odd), intoxication (he was drunk)
Expert Witness Testimony
Opinion must be:
(1) subject matter is one where scientific, technical, or other specialized knowledge would be helpful to the trier of fact,
(2) W must be qualified (possess knowledge, skill, experience, etc.),
(3) W must believe in opinion to reasonable degree of certainty
(4) Opinion must be supported by a proper factual basis
(5) Opinion must be based on reliable principles that were reliably applied (Daubert/Kumho)
- Opinion may be supported by personal observation, facts made known to the expert at trial, or facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the field
CA: same test, except for “reliable principles” standard
Daubert/Kumho Standard
Reliable principles standard: peer reviewed and published in journals, tested and subject to retesting, low error rate, and a a reasonable level of acceptance
Hypnotized Witnesses
CA: in addition to judge and jurors, also disqualifies witnesses who were hypnotized before trial to help refresh recollection
EXCEPTION: in CRIMINAL case, witness hypnotized by police using procedures that protect against suggestion
Kelley/Frye General Acceptance Test
CA only: reliability of scientific opinions relied upon by expert witnesses is determined only by ONE factor: the opinion must be based on principles generally accepted by experts in the field.
Learned Treatise Hearsay Exception
Fed: admissible to prove anything if treatise is accepted authority in field
CA: only admissible to show matters of general notoriety or interest. VERY NARROW and almost NEVER APPLICABLE
