Testimonial Evidence Flashcards
Competency Requirements
Personal Knowledge, Present Recollection, Communication, Sincerity
Common Objections
Calls for Narrative, Unresponsive, Leading on Direct, Beyond Scope of Direct, Assuming Facts Not In Evidence, Argumentative, Compound Question
Refreshing Recollection
May use anything to refresh, whatever is used may be inspected and admitted into evidence by adverse party
Recollection Recorded
Witness once had knowledge,
Document was made by witness or under direction, Document was adopted by witness (signed), Document was written/adopted when facts were fresh in memory, Document is accurate when made, Insufficient knowledge to testify
Opinion Testimony
Normally inadmissible HOWEVER admissible if:
Based on witnesses perception, is rationally based and helpful to jury.
rationally based: logical nexus between perception and opinion.
Help to jury if: gives more information than witness testimony if limited to describing perception
FRE: Cannot be based on scientific/special knowledge
Expert Testimony
Must be help to jury, Expert must be qualified, must believe opinion to reasonable certainty, opinion must be based on a proper factual basis and opinion must be based on reliable principles reliably applied
Daubert
Reliable principles reliably applies valid if:
peer reviewed, published in scientific journals, subject to test and retest, low rate of error, reasonable level of acceptance
Kumho
Reliable principles reliably applied.
Common sense would say this is unreliable.
Learned Treatise Exception
Admissible to prove anything stated there in if an accepted authority in the field. May be used as substantive evidence
Oregon: Does not recognize this, but treatise may be used to impeach expert.
Evidence of Witnesses Credibility
Inadmissible unless attacked first.
