Testimonial Evidence

Question 1

Competency

Answer 1

W who testifies must have personal knowledge of the matter he is to testify about and must take an oath

Question 2

Juror a

Answer 2

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

Question 3

Leading Questions

Answer 3

Allowed on direct ONLY to estabish preliminary matters, where the W has a challenge, or where the W is hostile; allowed on cross

Question 4

Improper questions and answers

Answer 4

Misleading, compound, argumentative, conclusionary, assuming facts not in evidence, cumulative, harassing, calls for narrative answer (sometimes), calls for speculation, lack of foundation, nonresponsive answer

Question 5

Use of Memoranda by Witness

Answer 5

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

Question 6

Opinion Testimony: LayW

Answer 6

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

Question 7

Opinion Testimony: EW

Answer 7

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

Question 8

Expert testimony: scientific evidence

Answer 8

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

Question 9

Qualification of EW

Answer 9

Special knowledge, skill, experiecnce, training, or education

Question 10

EW’s Factual Basis for Opinion

Answer 10

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)

Question 11

Expert testimony: authoritative texts and treatises

Answer 11

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?)

Question 12

Impeachment

Answer 12

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

Question 13

Accrediting/ Bolstering

Answer 13

Not allowed until W is impeached UNLESS it’s a prior statement of identification

Question 14

Impeachment Methods

Answer 14

Cross (discredit W’s own testimony; EE (calling other Ws or introducing docs that prove impeaching facts)

Question 15

Prior Inconsistent Statements

Answer 15

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)

Question 16

Bias, Interest, or Motive to Lie

Answer 16

W can be impeached with EE as long as he is first asked about the facts that show bias or interest on cross

Question 17

Sensory Defects

Answer 17

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

Question 18

Bad Reputation or Opinoin about W’s Char for Truthfulness

Answer 18

Any W can be impeached by rep/op evidence thru EE (e.g., calling another W to testify)

Question 19

Criminal Convictions

Answer 19

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

Question 20

Specific Acts of Misconduct

Answer 20

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)

Question 21

Rehabilitation

Answer 21

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

Question 22

Prior Consistent Statemetns

Answer 22

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!