Testimonial Evidence

Question 1

past recollection recorded requirements

Answer 1

1. The witness at one time had personal knowledge of the facts in the writing
2. The writing was made by the witness or under her direction, or it was adopted by the witness
3. The writing was timely made when the matter was fresh in the witnesses’s mind
4. The writing accurately reflects the witnesses’s knowledge
5. The witness has insufficient recollection to testify fully and accurately

Question 2

A witness may be impeached by a prior bad act only if the act is

Answer 2

probative of truthfulness.

Question 3

Extrinsic evidence of “bad acts” to prove misconduct is

Answer 3

not permitted.

Question 4

A witness may be impeached by showing he has a poor reputation for

Answer 4

truthfulness.

Question 5

A witness who has been impeached may be rehabilitated by the following methods:

Answer 5

1. Explanation on redirect
2. Good reputation for truthfulness
3. Prior consistent statement

Question 6

spousal immunity

Answer 6

• A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
• A married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant
• Privilege belongs to witness-spouse, so can’t be compelled to testify, but may choose to do so

Question 7

confidential marital communications

Answer 7

-in any civil or criminal case, confidential communications between spouses during a valid marriage are privileged
-either spouse can refuse to disclose the communication or prevent any person from doing so
marital relationship must exist when the communication is made
-divorce will not terminate the privilege, but communication after divorce are not privileged

Question 8

prior inconsistent statement

Answer 8

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony.

Question 9

A prior inconsistent statement may be proved

Answer 9

by either examination of the witness or by extrinsic evidence.

Question 10

To prove a prior inconsistent statement by extrinsic evidence, the witness generally must be given

Answer 10

an opportunity at some point to explain or deny the allegedly inconsistent statement, and the issue must be relevant to some issue in the case.

Question 11

A declarant’s statement identifying a person as someone the declarant perceived earlier is not hearsay if

Answer 11

the declarant testifies at trial and is subject to cross-examination about the statement.

Question 12

Lay opinions are admissible if

Answer 12

(i) rationally based on the perception of the witness, (ii) helpful to clear understanding of testimony or determining a fact in issue, (iii) not based on scientific, technical, or other specialized knowledge.

Question 13

Impeachment with Evidence of Bias or Interest

Answer 13

• Witness may be impeached with evidence that she has some motive to lie
• Extrinsic evidence permitted if proper foundation is laid (asking the witness about the impeaching fact)

Question 14

Impeachment with Prior Criminal Conviction

Answer 14

• Types of crimes: crimes involving dishonesty or false statement–court has no discretion to exclude; any other felony–court has discretion to exclude
• General time limit: more than 10 years since the date of release or confinement, whichever is the later date
• Conviction may be proven on cross-examination or through extrinsic evidence (record of conviction)

Question 15

Impeachment with Prior Bad Acts Involving Untrutfulness

Answer 15

A witness may be impeached by this method on cross-examination only; extrinsic evidence o the impeaching facts is never permitted

Question 16

Opposing Party’s Statement (Admission by a Party-Opponent)–Hearsay Exclusion

Answer 16

A statement by or attributable to a party, offered against that party, is not hearsay
-Special types:
By silence–failing to respond to an accusation that a reasonable person would have denied
Vicarious–statement by someone else, but attributable to the party because of the relationship between them (including a statement by the party’s employee concerning a matter in the scope of employment)