Testimonial Evidence Flashcards
All witnesses are presumed to be ____________.
competent
What do Dead Man Statutes prohibit?
an interested party in a case from testifying about a transaction or communication with the deceased against the deceased’s representative or successors in interest.
What jurisdictions espouse a Dead Man’s Statute?
State law. Federal law does NOT recognize dead man statutes.
In regards to recorded recollection, who can introduce the writing into evidence?
The opposing party. The party whose witness is reading the recorded recollection cannot introduce the writing itself into evidence, but may only read it into the record.
Lay witnesses’ opinions are generally inadmissible. However, when might they be allowed?
Where the opinion is 1) rationally based on the witness’s perception; 2) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue; and 3) is not based on scientific, technical or other specialized knowledge.
May an expert witness state an opinion on the ultimate issue in the case?
Yes. However, in a criminal case where the mental state of the defendant is at issue and is an element of the crime charged, an expert witness cannot state his opinion about whether such defendant had that mental state.
Can a treatise be introduced as substantive evidence?
Yes
What are the requirements for introducing passages from a treatise into evidence?
1) an expert must be on the stand when a passage from a treatise is read into the record; and 2) the passage can only be read into the record, not physically introduced.
Cross-examination is generally restricted to . . .
the topics covered in direct examination and all reasonable inferences that may be drawn from it.
When can a party bolster the testimony of their own witness?
Only where the credibility of the witness has been attacked by the opposing party.
Under the federal rules, who can impeach a witness?
any party, including the one that called the witness.
What kind of criminal convictions can be used to impeach a witness?
1) convictions of any crime involving dishonesty or false statement; and 2) any felony* involving dishonesty or false statement.
Are juvenile convictions admissible to impeach a witness?
No
A conviction is inadmissible if more than ______ years have passed since the conviction or release from prison, whichever is later.
10 years
A conviction may no be used to impeach a witness if the witness has been pardoned and . . .
1) the pardon is based on innocence; or 2) the person pardoned has not been convicted of a subsequent felony.
A witness can only be impeached by introduction of prior bad acts if . . .
the act is probative of truthfulness.
Can extrinsic evidence of prior bad acts be admitted to impeach the witness?
No
Are arrests considered prior bad acts?
No
Objections should be made ________ the question and __________ the answer.
after; before
Where an answer is given before an objection can be made, what must be done?
A motion to strike must be made.
Failure to object to a question is deemed a ______________.
waiver
Opening the Door
one who introduce evidence on a particular subject thereby asserts its relevance and cannot complain if his adversary thereafter offers evidence on the same subject.
Rule of Completeness
where all or part of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other party, or any related writing or recorded statement, that ought in fairness to be considered.
In federal court, what privileges govern?
There are only common law privileges used in federal court. However, where the case is in federal court under diversity jurisdiction, the law of the state governs privileges.
Who may assert a privilege?
the holder of the privilege.
