Testimonial Evidence Flashcards
Testimonial qualifications
= what has to be true of a witness before they can give testimony in a courtroom
FRE #s
WITNESS COMPETENCE
RULE 601-605
4 basic testimonial qualifications
WITNESS COMPETENCE
4 basic testimonial attributes that every witness must have to some degree = the capacity to
- observe = perception
- recollect = memory
- communicate = communication
- appreciate the obligation to speak truthfully
does diminutions of any of the 4 capacities make witness incompetent?
WITNESS COMPETENCE
usually only goes to weight of testimony = serves to make witness less persuasive
UNLESS witness is so deficient she will be deemed incompetent to testify at all
problem of infancy
WITNESS COMPETENCE
- Witness may be too young at the time of event to be able to accurately perceive what happened or to be able to remember at the time of the trial
- Witness may also be too young at the time of trial to effectively relate or communicate or appreciate the obligation to tell the truth
presumption
WITNESS COMPETENCE
Presumption of competency
= every person is competent to be witness unless these rules provide otherwise
RULE 601
2 requirements for competent witnesses to testify
WITNESS COMPETENCE
- personal knowledge
2. witness must declare he will testify truthfully by oath or affirmation
personal knowledge
WITNESS COMPETENCE
= witness must have
- observed the matter AND
- must have a present recollection of his observation
RULE 603
witness must declare he will testify truthfully by oath or affirmation - key takeaways
WITNESS COMPETENCE
- No specific words are required
- All that is required is that witness understand the importance of telling the truth and a penalty for failing to do so
RULE 603
interpreter requirements
WITNESS COMPETENCE
If witness requires an interpreter, interpreter must be qualified and take an oath to make a true translation
RULE 604
judge as witness - rule
WITNESS COMPETENCE
- presiding judge may not testify as a witness
- no objection need be made to preserve the point
RULE 605
judge as witness - rationale
WITNESS COMPETENCE
Basis for disqualification
= when the judge is called as a witness, her role as a witness is inconsistent with her role as presiding judge, which requires her to maintain impartiality
juror as witness - rule
WITNESS COMPETENCE
- jurors are incompetent to testify before the jury in which they are sitting
- jurors are prevented from testifying in post-verdict proceedings as to to matters or statements occurring during the course of jury deliberations
RULE 606
juror as witness - exceptions
WITNESS COMPETENCE
- a juror may testify as to whether “extraneous prejudicial information” or any “outside influence” was brought to bear on any juror
- juror may testify as to whether there was a mistake in entering the verdict onto the verdict form
juror as witness - rationale
WITNESS COMPETENCE
juror-witness cannot impartially weigh his own testimony and cannot be thoroughly cross-examined for fear of creating antagonism
examination of witnesses - control
EXAMINATION OF WITNESS
Rule = judge may exercise reasonably control over the examination of witnesses in order to
- aid the effective ascertainment of truth
- avoid wasting time and
- protect witnesses from harassment or undue embarrassment
RULE 611(a)
examination of witnesses - general issues
EXAMINATION OF WITNESS
- When may leading questions be used
- What other types of questions are objectionable
- When and how may a witness use memoranda
leading questions - definition
EXAMINATION OF WITNESS
= suggests to the witness the fact that the examiner expects and wants to have confirmed
leading questions - rule
EXAMINATION OF WITNESS
- Not allowed on direct examination
- Allowed on cross-examination
leading questions - exception
EXAMINATION OF WITNESS
Leadings questions may be permitted on direct examination in
- Noncrucial areas
- If no objection is made
- When
a. Used to elicit preliminary or introductory matter OR
b. The witness needs aid to respond because of loss of memory, immaturity, or physical/mental weakness OR
c. Witness is hostile or improperly uncooperative, an adverse party, or a person identified with an adverse party
RULE 611(c)
improper questions
EXAMINATION OF WITNESS
Following types of questions are improper and not permitted
- Misleading
- Compound
- Argumentative
- Conclusionary
- Assuming facts not in evidence
- Cumulative
- Harassing or embarrassing
- Calls for a narrative answer
- Calls for speculation
- Lack of foundation
- Nonresponsive answer
leading questions - types
EXAMINATION OF WITNESS
- Questions calling for yes/no answers
2. Questions framed to suggest the answer desired
use of memoranda by witness
EXAMINATION OF WITNESS
- Witness cannot read her testimony from a prepared memorandum
- Memorandum may be used
a. To refresh recollection of the witness
b. To substitute for the witness’s forgotten testimony upon authentication
c. In cross-examination of the witness
present recollection revived
EXAMINATION OF WITNESS
= refreshing recollection
- A witness may use any writing or thing for the purpose of refreshing her present recollection
- The sworn testimony must demonstrate a present recollection
- She usually may not read from the writing while she actually testifies, since the writing
1. is not authenticated,
2. is not in evidence, and
3. may be used solely to refresh her recollection
past recollection recorded
EXAMINATION OF WITNESS
= recorded recollection (frequently classified as a hearsary exception)
- Where a witness
- states that she has insufficient recollection of an event to enable her to testify fully and accurately,
- even after she has consulted a writing given to her on the stand,
= the writing itself may be read into evidence IF a proper foundation is laid for its admissibility
RULE 803(5)
past recollection recorded - foundation
EXAMINATION OF WITNESS
The foundation for receipt of the writing into evidence must include proof that:
- The witness at one time had personal knowledge of the facts recited in the writing
- The writing was made by the witness or made under her direction or that it was adopted by the witness
- The writing was timely made when the matter was fresh in the mind of the witness
- The writing is accurate AND
- The witness has insufficient recollection to testify fully and accurately
RULE 803(5)
if a writing is admitted as a past recollection recorded, how will the jury receive it?
EXAMINATION OF WITNESS
- if admitted, the writing may be read into evidence and heard by the jury
- BUT the document itself is not received as an exhibit UNLESS offered by adverse party
use of memoranda to refresh memory - inspection
EXAMINATION OF WITNESS
If the witness has refreshed her memory before trial by looking at the writing, it is within the court’s discretion to require production of the document and to permit inspection, cross-examination, and introduction of pertinent excerpts
RULE 612
use of memoranda to refresh memory - adverse party entitlements
EXAMINATION OF WITNESS
whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled
- to have the writing produced at trial,
- to inspect it,
- to cross-examine the witness thereon, and
- to introduce into evidence those portions that relate to the witness’s testimony
RULE 612
may an adverse party introduce into evidence a writing that the proponent has read into evidence as past recollection recorded?
EXAMINATION OF WITNESS
yes
RULE 803(5)
opinion by lay witness - rule
OPINION TESTIMONY
General rule = inadmissible
RULE 701
opinion by lay witness - exception
OPINION TESTIMONY
Opinion testimony by lay witnesses is admissible when it is
- Rationally based on the perception of the witness
- Helpful to a clear understanding of her testimony to the determination of a fact in issue AND
- Not based on scientific, technical, or other specialized knowledge (unless witness meets requirements for expert testimony in RULE 702)
RULE 701
opinion by lay witness - procedure
OPINION TESTIMONY
- UNLESS waived by failure to object, proper foundation MUST be laid
- Court in its discretion MUST require a witness to state the facts observed before stating her opinion
opinion by lay witness - 8 admissible situations
OPINION TESTIMONY
- General appearance of condition of a person
- State of emotion
- Matters involving sense recognition
- Voice or handwriting identification
- Speed of moving object
- Value of own services
- Rational or irrational nature of another’s conduct (sanity)
- Intoxication
general appearance of condition of a person
OPINION TESTIMONY
= admissible
BUT does not include testimony that a person is suffering from specific diseases or specific injuries (usually requires knowledge of an expert)
voice or handwriting identification
OPINION TESTIMONY
= admissible
BUT foundation must be laid to show familiarity with the voice or handwriting
intoxication
OPINION TESTIMONY
= admissible
BUT may require foundation of details of person’s appearance
opinion by lay witness - foundation
OPINION TESTIMONY
Unless waived, proper foundation must be laid by showing
- that witness had the opportunity
- to observe
- the event that forms the basis of her opinion
opinion by lay witness - 2 inadmissible situations
OPINION TESTIMONY
- Agency or authorization
2. Contract or agreement
agency or authorization
OPINION TESTIMONY
- When agency or authorization is in issue
= witness GENERALLY MAY NOT state a conclusion as to her authorization - MUST BE ASKED
1. By whom she was employed
2. Nature, terms, and surrounding circumstances of her employment
contract or agreement
OPINION TESTIMONY
- When existence of an express contract is in issue
= witness GENERALLY MAY NOT state her opinion that an agreement was made - MUST BE ASKED about facts that would or would not establish whether contract existed
What qualifies a witness to testify as an expert?
OPINION TESTIMONY - EXPERT WITNESS
ONE OR MORE OF:
- skill
- knowledge
- education
- experience
- training
Is formal education required for an expert witness?
OPINION TESTIMONY - EXPERT WITNESS
No
requirements
OPINION TESTIMONY - EXPERT WITNESS
- subject matter must be appropriate for expert testimony
- witness must be qualified as an expert
- expert must possess reasonably probability regarding his opinion
- opinion must be supported by proper factual basis
RULE 702
appropriate subject matter
OPINION TESTIMONY - EXPERT WITNESS
Expert opinion testimony is admissible if the subject matter is one where
1. scientific,
2. technical,
3. or other specialized knowledge
would help the trier of fact understand the evidence or determine a fact in issue
RULE 702
test of assistance to trier of fact
OPINION TESTIMONY - EXPERT WITNESS
would help trier of fact understand or determine a fact in issue
= TWO REQUIREMENTS
1. the OPINION must be RELEVANT
2. the METHODOLOGY underlying the opinion must be RELIABLE
when is the methodology sufficiently reliable?
OPINION TESTIMONY - EXPERT WITNESS
- the proponent of the expert testimony must satisfy the trial judge
- by a preponderance of the evidence that
(a) the opinion is based on sufficient facts or data
(b) the opinion is the product of reliable principles and methods AND
(c) the expert has reliably applied the principles and methods to the case
when is the opinion sufficiently relevant?
OPINION TESTIMONY - EXPERT WITNESS
must “fit the facts of the case”
RULE 702
is guess or speculation of expert witness permissible?
OPINION TESTIMONY - EXPERT WITNESS
NO
expert must possess reasonably certainty or probability regarding his opinion
3 possible sources of information
OPINION TESTIMONY - EXPERT WITNESS
The expert’s opinion may be based upon one or more of these 3 possible sources of information:
(i) facts that the expert knows from his own observation;
(ii) facts presented in evidence at the trial and submitted to the expert, usually by hypothetical question; or
(iii) facts not in evidence that were supplied to the expert out of court, and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject
RULE 705
may expert give opinion testimony on direct examination without disclosing the basis of the opinion?
OPINION TESTIMONY - EXPERT WITNESS
YES
but may be required to disclose such information on cross-examination
RULE 705
personal observation as proper factual basis
OPINION TESTIMONY - EXPERT WITNESS
RULE = If the expert has examined the person or thing about which he is testifying, he may relate those facts observed by him and upon which he bases his opinion
EXAMPLE = An expert may testify that he examined plaintiff’s leg following the accident, and in his opinion the plaintiff sustained a compound fracture
RULE 703
facts made known to expert @ trial as proper factual basis
OPINION TESTIMONY - EXPERT WITNESS
The expert’s opinion may be based upon the evidence
- introduced at the trial and
- related to the expert by counsel in the form of a hypothetical question
- that is based on facts derived from any of the three sources of information noted above
RULE 705
facts made known to expert outside court as proper factual basis
OPINION TESTIMONY - EXPERT WITNESS
The expert may base an opinion upon facts not known personally but supplied to him outside the courtroom
EXAMPLES = reports of nurses, technicians, or consultants
RULE 703
use of hypothetical question - facts made known to expert @ trial
OPINION TESTIMONY - EXPERT WITNESS
hypothetical question need not be asked
= modern trend, adopted by FRE
RULE 705
admissibility of facts made known to expert outside court
OPINION TESTIMONY - EXPERT WITNESS
such facts need not
- be in evidence
- OR EVEN of a type admissible in evidence
- AS LONG AS the facts are of a kind reasonably relied upon by experts in the particular field
- BUT if the facts are of a type inadmissible in evidence = proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect
RULE 703
opinions embracing the ultimate issue - traditional view
OPINION TESTIMONY - EXPERT WITNESS
- traditional = prohibition on opinions embracing ultimate issue in the case
opinions embracing the ultimate issue - modern trend
OPINION TESTIMONY - EXPERT WITNESS
modern trend = repudiates traditional prohibition
opinions embracing the ultimate issue - FRE
OPINION TESTIMONY - EXPERT WITNESS
ADOPTS MODERN TREND
= opinion is NOT OBJECTIONABLE just because it embraces an ultimate issue
(but to be ADMISSIBLE, opinion still must help the trier of fact to understand the evidence or determine a fact in issue)
RULE 704(a)
opinions embracing the ultimate issue - exception
OPINION TESTIMONY - EXPERT WITNESS
FRE prohibit ultimate issue testimony in 1 situation:
- criminal case
- in which the defendant’s mental state constitutes an element of crime/defense
= an expert may not state an opinion as to whether the accused did or did not have mental state in issue
RULE 704(b)
authoritative texts and treatises
OPINION TESTIMONY - EXPERT WITNESS
An expert may be cross-examined concerning statements contained in any scientific publication, AS LONG AS the publication is established as reliable authority
authoritative texts and treatises - reliability
OPINION TESTIMONY - EXPERT WITNESS
A publication may be established as reliable by:
- the direct testimony or cross-examination admission of the expert,
- the testimony of another expert, or
- judicial notice
if the expert refuses to recognize a test as authoritative, may it be used on cross-examination?
OPINION TESTIMONY - EXPERT WITNESS
YES
if its reliability is established by one of the other methods
expansion of admissibility of learned texts and treatises
OPINION TESTIMONY - EXPERT WITNESS
- FRE have expanded the admissibility of learned texts and treatises beyond impeachment of experts
- Statements from an established treatise may be
1. read into the record as substantive evidence and/or
2. even introduced on direct examination of
a party’s own expert
RULE 803(18)—exception to hearsay rule
limitations on expansion of admissibility of learned texts and treatises
OPINION TESTIMONY - EXPERT WITNESS
2 important limitations:
(i) an expert must be on the stand when a statement from a treatise is read into evidence AND
(ii) the relevant portion is read into evidence but is not received as an exhibit (= the jury never sees it)
factors considered by court in determining reliability of principles and methods
OPINION TESTIMONY - EXPERT WITNESS
= TRAP
T - testing = have these principles/methods been tested?
R - rate of error = what is the rate of error of these principles/methods?
A - acceptance = have these principles/methods been accepted by other experts in the same discipline?
P - peer review and publication = have these principles/methods been vetted by the particular field?
