TESTIMONIAL EVIDENCE Flashcards
TESTIMONIAL EVIDENCE
1) Competency
2) Use of Documents by Witness During Testimony
(a) Present Recollection Refreshed
(b) Recorded Recollection
3) Objections to Form of Question or Testimony
4) Lay Opinion Testimony
5) Expert Opinion Testimony
Competency
A testifying witness must be competent. Competency qualifications require: (1) personal knowledge, (3) present recollection, (3) communication, and (4) sincerity. Diminution of any of the above capacities usually goes only to the weight of the testimony (i.e. makes W less persuasive)
(1) Personal Knowledge: W’s testimony must be based on her own perceptions (e.g. what W saw or heard). Perception need not be perfect (e.g. W testifies he saw the D shoot the V, but admits lighting was poor)
(2) Present Recollection: W must testify from present memory, not from a record of matters the W once know but has since forgotten.
(3) Communication: W myst be able to relay her perceptions, either directly or indirectly through an interpreter.
(4) Sincerity: W must take an oath or affirm to tell the truth
Dead Man Statute
In some jurisdictions (not the FRE) in a CIVIL suit against an estate, an interested party is incompetent to testify to a transaction or communication with the decedent.
Grounds of Disqualification
Almost all other grounds for witness disqualification, besides competency, have been abolished. Only the judge and jurors are absolutely disqualified from testifying.
(1) Religious beliefs are inadmissible to attack a witness’s credibility
(2) There is no age limit or requirement
(3) Hypnotization allowed under FRE, limited under CEC
Use of Documents by Witness During Testimony: Present Recollection Refreshed
Documents can be used to refresh a witness’s memory during testimony. Anything can be used to refresh a witness’s memory. A witness may not read aloud from a document, but can look at it briefly, then continue testimony unassisted
Opponent may inspect and offer into evidence anything used to refresh a witness’s memory
Use of Documents by Witness During Testimony: Recorded Recollection (Hearsay Exception)
Contents of a document a witness previously wrote or adopted is read into evidence. This requires that witness:
(1) Once had personal knowledge of facts comprising the recorded recollection
(2) Document was written or adopted by the witness
(3) Witness wrote or adopted the document when its contents were fresh in the witness’s memory
(4) Witness’s memory is insufficient to testify at trail as tot he document’s contents (i.e. present recollection refreshed was ineffective); AND
(5) Document was accurate at the time it was made
Objections to Form of Question or Testimony
Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived.
Testimonial objections include:
(1) Unresponsive/Nonresponsive: A witness’s testimony does not relate to or directly answer the question asked. Move to strike the response.
Form of question objections include:
(1) Calls for Narrative: Open-ended question allowing witness to respond in any way; attorney must ask specific questions
(2) Leading: Question itself suggest the answer. Leading questions are improper on direct unless the witness is hostile or an adverse party. Leading questions are acceptable on cross-exam as long as they stay within the scope of direct
(3) Assumes Facts not in Evidence: Question makes an assumption which as not been established on the record
(4) Argumentative: Question does not actually ask anything, but is instead an assertion
(5) Compound: Question that asks more than one question at at time; attorneys must ask questions individually
(6) Beyond the Scope of Direct: Arises on cross-exam. Attorneys must confine their questions during cross-exam to the scope of direct. (i.e. cannot ask questions involving matters not discussed on direct)
Lay Opinion Testimony
Testimony in the form of opinion is INADMISSIBLE unless the witness qualifies to give a lay or expert opinion. Lay opinion is admissible if:
(1) The opinion is rationally based on the witness’s PERCEPTION
(2) The opinion is HELPFUL to the trier of fact. Helping meaning it gives the jury more information regarding the witness’s perception than the perception alone. Legal conclusions are INADMISSIBLE because they are deemed unhelpful
(3) Not based on (a) scientific, (b) technical, or (c) other specialized knowledge (i.e. not int he realm of expert opinion)
Examples of Admissible Lay Opinion Testimony include:
(1) Speed of Car
(2) Emotional State of an Individual
(3) Voice or Handwriting Recognition
(4) Sense Recognition
(5) Intoxication
Expert Opinion Testimony
Experts may provide opinions on facts or issues in the case. Experts may render an opinion on any ultimate legal issues, EXCEPT opinions on defendant’s mental state in a CRIMINAL trial if it is an element of a crime or defense.
Expert opinion is admissible if:
(1) It is HELPFUL. The expert’s opinion must be helpful to the trier of fact (i.e. expert uses specialized knowledge to reach conclusions an average juror would not reach alone)
(2) The expert is QUALIFIED. Expert must possess special knowledge, skill, experience, training or education (specialized knowledge does not need to come from school)
(3) It is REASONABLY CERTAIN. Expert must believe in her opinion to a reasonable degree of certainty, can admit some doubt
(4) There is PROPER FACTUAL BASIS for the opinion. The opinion must be based on facts. Expert may base opinion on (a) admitted evidence, (b) personal knowledge, or (c) inadmissible evidence properly relied upon (e.g. data, other testimony experience)
(5) The opinion is based on RELIABLE PRINCIPALS REASONABLY RELIED ON. If expert opinion is based on science, court also considers whether evidence is:
i. Peer tested and capable of retesting
ii. Published
iii. Has low error rate
iv. Reasonably accepted in the field of study
