Testimonial Evidence Flashcards
Who can testify
Those who are competent
4 Requirements for Competency
- Personal knowledge
- Present recollection
- Communication
- Sincerity
Distinguish between personal knowledge & hearsay objections.
- Does the fact testified to = the fact perceived? If not, PK is the objection.
- 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
Present recollection
Witness must testify from present recollection, not from some record regarding matters the witness once knew but has now forgotten.
Communication.
Witness must be able to relate perception either directly or through interpreter.
Sincerity.
Witness must take oath or make affirmation to tell truth.
Who is absolutely disqualified from testifying?
Judges & Jurors
Dead Man’s Statute:
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.
An objection needs to be _____ & ______ or else it is waived
Timely and Specific
Objections to form of testimony and questions.
- Calls for narrative
- Unresponsive
- Leading
- Assumes facts not in evidence
- Argumentative
- Compound.
Leading - when permissible and impermissible
- 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
Refreshing recollection
- Anything can be used to refresh recollection
- The opponent may inspect and offer into evidence anything used to refresh.
Recorded recollection exception to hearsay rule Elements:
- The witness once had personal knowledge of the facts.
- The document was made by the witness or under the witness’ direction or was adopted by the witness.
- The document was written or adopted at a time when the facts were fresh in the witness’ memory.
- The document was accurate when made.
- The witness now has insufficient recollection to testify as to the matters contained in the document.
Adoption
Adoption = another person made the record and witness
did or said something to indicate she agreed with contents.
Opinion testimony.
Normally inadmissible. Lay and Expert Opinion may be admissible
Lay opinion.
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.
Expert opinion. 5 requirements for admissibility. Opinion must be:
- helpful to jury,
- witness must be qualified,
- witness must believe in opinion to reasonable
degree of certainty, - opinion must be supported by a proper factual basis, and
- opinion must be based on reliable principles that were reliably applied
“Helpful” - Expert Opinion
Helpful = expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.
Opinion must be based on one of the following:
- admitted evidence,
- personal knowledge, or
- inadmissible evidence reasonably relied upon.
Expert Opinion Must be based upon:
Opinion must be based on reliable principles that were reliably applied
Daubert/Kumho standard for Expert Testimony
Technique does not need to be generally accepted, just:
- 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.
Learned treatise hearsay exception.
LT is admissible to prove anything stated therein if it is an accepted authority in field.
Evidence to support witness credibility.
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!
Prior Consistent Statements and Bribes of Witnesses
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.
Impeachment of a witness. Three step approach to admissibility of impeachment evidence:
- Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
- If extrinsic, is it admissible given impeachment technique?
- Any other foundation requirements?
Definition of Extrinsic Evidence:
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
Impeachment by Contradiction
Extrinsic evidence inadmissible to contradict on
collateral matter.
Collateral matter
a fact not material to the issues in the case that says nothing about witness’ credibility other than to contradict the witness.
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?
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
Prior Inconsistent Statements (PIS)
- 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.
Impeachment with Evidence of Bias, Interest, Motive
Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny.
Impeachment with Conviction for Crime Involving False Statement.
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
Impeachment with Conviction for a Crime Not Involving False Statement
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.
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 ____ years since the date of conviction or release from prison (whichever is later)……
10 years
it is inadmissible unless probative value outweighs unfair
prejudice.
Impeachment with Non-Conviction Misconduct Evidence Bearing on Truthfulness.
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.
Impeachment with Reputation and Opinion Regarding Truthfulness.
Extrinsic evidence admissible.
