Testimonial Evidence

Question 1

Who can testify

Answer 1

Those who are competent

Question 2

4 Requirements for Competency

Answer 2

1. Personal knowledge
2. Present recollection
3. Communication
4. Sincerity

Question 3

Distinguish between personal knowledge & hearsay objections.

Answer 3

1. Does the fact testified to = the fact perceived? If not, PK is the objection.
2. Does the witness quote someone or explicitly refer to someone’s out of court statement that witness heard? If so, hearsay is the objection.

Perceptions may be limited

Question 4

Present recollection

Answer 4

Witness must testify from present recollection, not from some record regarding matters the witness once knew but has now forgotten.

Question 5

Communication.

Answer 5

Witness must be able to relate perception either directly or through interpreter.

Question 6

Sincerity.

Answer 6

Witness must take oath or make affirmation to tell truth.

Question 7

Who is absolutely disqualified from testifying?

Answer 7

Judges & Jurors

Question 8

Dead Man’s Statute:

Answer 8

In some jurisdictions (not FRE) in a civil suit against an
estate, an interested party is incompetent to testify to a transaction or communication with decedent.

Question 9

An objection needs to be _____ & ______ or else it is waived

Answer 9

Timely and Specific

Question 10

Objections to form of testimony and questions.

Answer 10

1. Calls for narrative
2. Unresponsive
3. Leading
4. Assumes facts not in evidence
5. Argumentative
6. Compound.

Question 11

Leading - when permissible and impermissible

Answer 11

• Usually no leading on direct
• Leading OK on cross
• Cross must stay within scope of direct.
• Leading OK on direct if adverse witness, hostile witness, witness needing help

Question 12

Refreshing recollection

Answer 12

• Anything can be used to refresh recollection
• The opponent may inspect and offer into evidence anything used to refresh.

Question 13

Recorded recollection exception to hearsay rule Elements:

Answer 13

1. The witness once had personal knowledge of the facts.
2. The document was made by the witness or under the witness’ direction or was adopted by the witness.
3. The document was written or adopted at a time when the facts were fresh in the witness’ memory.
4. The document was accurate when made.
5. The witness now has insufficient recollection to testify as to the matters contained in the document.

Question 14

Adoption

Answer 14

Adoption = another person made the record and witness
did or said something to indicate she agreed with contents.

Question 15

Opinion testimony.

Answer 15

Normally inadmissible. Lay and Expert Opinion may be admissible

Question 16

Lay opinion.

Answer 16

Admissible if rationally based on the witness’ perceptions and helpful to the trier of fact.

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

Cannot be based on scientific or other specialized knowledge.

Question 17

Expert opinion. 5 requirements for admissibility. Opinion must be:

Answer 17

1. helpful to jury,
2. witness must be qualified,
3. witness must believe in opinion to reasonable
   degree of certainty,
4. opinion must be supported by a proper factual basis, and
5. opinion must be based on reliable principles that were reliably applied

Question 18

“Helpful” - Expert Opinion

Answer 18

Helpful = expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.

Question 19

Opinion must be based on one of the following:

Answer 19

1. admitted evidence,
2. personal knowledge, or
3. inadmissible evidence reasonably relied upon.

Question 20

Expert Opinion Must be based upon:

Answer 20

Opinion must be based on reliable principles that were reliably applied

Question 21

Daubert/Kumho standard for Expert Testimony

Answer 21

Technique does not need to be generally accepted, just:

1. it has been peer reviewed and
2. published in scientific journals,
3. has been tested and is subject to retesting,
4. has a low error rate,
5. and has a reasonable level of acceptance.

Question 22

Learned treatise hearsay exception.

Answer 22

LT is admissible to prove anything stated therein if it is an accepted authority in field.

Question 23

Evidence to support witness credibility.

Answer 23

Inadmissible unless credibility is attacked first.

Watch out for hidden hearsay issues when a prior
statement of a witness is offered to attack or support credibility!

Question 24

Prior Consistent Statements and Bribes of Witnesses

Answer 24

Prior consistent statement is not hearsay and admissible for all purposes if made before bribe or rehabilitates witness credibility when attacked on another ground.
Otherwise, it is inadmissible for any purpose.

Question 25

Impeachment of a witness. Three step approach to admissibility of impeachment evidence:

Answer 25

1. Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
2. If extrinsic, is it admissible given impeachment technique?
3. Any other foundation requirements?

Question 26

Definition of Extrinsic Evidence:

Answer 26

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 27

Impeachment by Contradiction

Answer 27

Extrinsic evidence inadmissible to contradict on
collateral matter.

Question 28

Collateral matter

Answer 28

a fact not material to the issues in the case that says nothing about witness’ credibility other than to contradict the witness.

Question 29

Impeachment by Prior Inconsistent Statement (PIS). 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?

Answer 29

1) relevant to reliability
2) relevant to prove D had green light
1) potentially admissible to impeach witness, not hearsay,
2) not for green light hearsay

Question 30

Prior Inconsistent Statements (PIS)

Answer 30

• PIS of witness who testifies at trial = not hearsay if given under oath at trial or deposition. Otherwise = hearsay and inadmissible if offered to prove truth.
• Extrinsic evidence of PIS inadmissible to impeach on collateral matter.
• Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny.

Question 31

Impeachment with Evidence of Bias, Interest, Motive

Answer 31

Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny.

Question 32

Impeachment with Conviction for Crime Involving False Statement.

Answer 32

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

Question 33

Impeachment with Conviction for a Crime Not Involving False Statement

Answer 33

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.

Question 34

If the conviction is otherwise admissible under the above rules, the conviction may be proved with…

Answer 34

Extrinsic Evidence

Question 35

If the conviction is otherwise admissible under the above rules, but it is more than ____ years since the date of conviction or release from prison (whichever is later)……

Answer 35

10 years

it is inadmissible unless probative value outweighs unfair
prejudice.

Question 36

Impeachment with Non-Conviction Misconduct Evidence Bearing on Truthfulness.

Answer 36

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.

Question 37

Impeachment with Reputation and Opinion Regarding Truthfulness.

Answer 37

Extrinsic evidence admissible.