Testimonial Evidence Flashcards
Competency
W who testifies must have personal knowledge of the matter he is to testify about and must take an oath
Juror a
Jurors are incompetent to testify before the jury in which they are sitting and cannot testify as to anything that occured during the jury’s deliberations, the effect of anything on that juror’s or another juror’s vote or any juror’s mental processes concerning the verdict or indictment
Exceptions: extraneous prejudicial information improperly brought to the jury’s attention; mistake on verdict form; outside influence; clear evidence of racial stereotype
Leading Questions
Allowed on direct ONLY to estabish preliminary matters, where the W has a challenge, or where the W is hostile; allowed on cross
Improper questions and answers
Misleading, compound, argumentative, conclusionary, assuming facts not in evidence, cumulative, harassing, calls for narrative answer (sometimes), calls for speculation, lack of foundation, nonresponsive answer
Use of Memoranda by Witness
Present Recollection Revived (Refreshing Recoolection): ANYTHING can be used to refresh; if W forgets about something, atty can hand her something to jog her memory (W cannot read from it); opposing party can introduce it
Past Recollection Recorded: If W cant remember even after consulting a wrting, writing itself may be read into evidence if W had personal knowledge of facts recited, writing was made or adopted by W; matter was fresh in W’s mind; and W accurately reflects W’s knowledge (this is hearsay but falls under an exception); opposing party can offer it into evidence otherwise it’s just read
Opinion Testimony: LayW
ADM if ir is rationally based on the perception of the W, it is helpful to a clear understanding of her testimony or to the determination of a fact in issue AND it isn’t based on scientifi, technical, or other specialized knowledge
Includes: appearance or condn of person, state of emotion, sense recognition, voice/handwriting, speed of moving object, value of own services, sanity, intoxication
Opinion Testimony: EW
Expert testimony is admissible if (1) SM is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue; (2) opinoin is based on sufficient facts or data; (3) opinion is product of reliable principles and methods and (4) EW has reliably applied the principles and methods to the facts of hte case
Expert testimony: scientific evidence
DAUBERT. Whe determining reliability of evid based on scientific heory, court wil look at factors: whether theory has been tested, subjected to peer review and publication, its error rate, the standards controlling its operation, and whether it’s accepted in the scientific community
Qualification of EW
Special knowledge, skill, experiecnce, training, or education
EW’s Factual Basis for Opinion
Personal observation, facts made known to EW at trial, facts made known to expert outside court (opinion may embrace ultimate issue except in criminal MR context)
Expert testimony: authoritative texts and treatises
EW can be crossed concerning statements contained in any scientific publication as long as the publication is established as a reliable authority (e.g., doesn’t this book disagree with ur conclusion?)
Impeachment
Casting of an adverse reflection on the veracity of the W; any matter that tends to prove or disprove credibility of the W is usually admitted; any party can impeach any W
Accrediting/ Bolstering
Not allowed until W is impeached UNLESS it’s a prior statement of identification
Impeachment Methods
Cross (discredit W’s own testimony; EE (calling other Ws or introducing docs that prove impeaching facts)
Prior Inconsistent Statements
Any W can be impeached by showing that, on some prior occasion, the W made a material statement (oral or written) inconsistent with the W’s trial testimony
Form: cross (or EE, if W is given opp to explain or deny and adverse party is given opp to examine W about statement; this doesn’t apply if W=party opponent)
*ADM to IMPEACH. If you want to get it in as substantive evid, it is hearsay UNLESS it was made under oath at a prior proceeding or deposition (not grand jury idt)
Bias, Interest, or Motive to Lie
W can be impeached with EE as long as he is first asked about the facts that show bias or interest on cross
Sensory Defects
Anything that could affect W’s perception or memory (poor eyesight, mental defect, alochol or drug use at the time); can be proven with EE w/o confronting W about it
Bad Reputation or Opinoin about W’s Char for Truthfulness
Any W can be impeached by rep/op evidence thru EE (e.g., calling another W to testify)
Criminal Convictions
100% admit: Nonstale deceit crimes (fraud, embezzlement, perjury NOT robbery or larceny)
80% admit: Nonstale nondeceit felony where W≠D
50% admit: Nonstale nondeceit felony where W=D
20% admit: Stale deceit felony or misdemeanor
1% admit: Juvenile adjudication
0% admit: Nondeceit misdemeanor
Specific Acts of Misconduct
W can be interrogated upon cross w/r/to immoral act that affects hiw character for truthfulness; counsel must ask in GF; EE INADM (atty must accept answer, cannot refute it); cannot reference consequences of bad acts (did u get fired for embezzling not ok; did u embezzle ok)
Rehabilitation
W who has been imepached may be rehabilitaed on redirect or by EE through explanation on redirect, good reputation for truthfulness, or prior consistent statements under SOME circumstances
Prior Consistent Statemetns
Only permitted if it is to rebut charge of fabrication based on improper motive OR when W was impeached on a non-character ground (e.g., alleged inconsistency or sensory deficiency)
*Admissible as substantive evidence!
