Testimonial Evidence

Question 1

What four basic testimonial attributes must a witness possess?

Answer 1

Capacity to observe, recollect, communicate, and appreciate the obligation to speak truthfully

Question 2

What limitations on competency does the FRE require?

Answer 2

(1) evidence sufficient to support a finding that the witness has personal knowledge (this may consist of the witness’s own testimony)
(2) witness must swear to tell the truth (oath or affirmation)

Question 3

What are dead man statutes?

Answer 3

Generally: a witness is not incompetent merely because they have a direct legal stake in the outcome of the litigation

Some states have dead man’s statutes, which prevent interested parties from testifying in civil actions in support of their own interest against the estate of a decedent concerning communications or transactions between themself and the decedent

Question 4

When is a leading question allowed?

Answer 4

Generally on cross.

Not on direct unless (1) preliminary, (2) youthful or forgetful witness, (3) hostile witness, (4) adverse party

Question 5

What is the proper scope of cross examination?

Answer 5

Matters within the scope of direct examination and matters testing witness credibility

Question 6

When may witnesses use writings to supplement their testimony?

Answer 6

General rule: cannot read prepared written statement, but in certain circumstances witnesses may use a written statement through the present recollection refreshed rule or the recorded recollection rule

Question 7

What is the present recollection refreshed rule?

Answer 7

A witness may use a writing (or other evidence) to refresh their present recollection on the stand. They cannot read from the writing while testifying and cannot offer it into evidence (eliminating the hearsay problem)

Whenever a witness uses evidence to refresh present recollection, the adverse party is entitled to: (1) inspect it, (2) introduce the evidence, (3) cross-examine the witness about it.

If the witness’s recollection is refreshed prior to testimony, the adversary is not entitled to the above but the judge may allow in their discretion

Question 8

What is the past recollection recorded rule?

Answer 8

If a witness’s memory cannot be jogged even after consulting the record given to her on the stand, the record may be read into evidence with proper foundation. Record must be:

(1) witness at one time had personal knowledge of the facts in the record
(2) made or adopted by the witness
(3) record timely made/fresh in the witness’s mind
(4) accurate reflection of knowledge (testimony that it was accurate when made)
(5) witness has insufficient recollection to testify fully and accurately

Cannot be introduced as an exhibit by proponent party, but can be by adverse party

Question 9

When are lay witness opinions admissible?

Answer 9

Generally: inadmissible unless (1) rationally based on witness perception, (2) helpful to the jury in deciding a fact, and (3) not based on specialized expertise

Question 10

When is expert witness testimony admissible?

Answer 10

(1) witness must be qualified (possess special knowledge, skill, education, training)
(2) subject matter must be one where expert testimony would assist the trier of fact
(3) opinion based on sufficient facts or data/proper factual basis – possible data sources: (a) personal observation (treatment of plaintiff, e.g.), (b) facts made known to expert at trial, (c) facts not personally known but supplied outside courtroom and of a type reasonably relied on by experts in the field (need not be admissible
(4) expert must possess reasonable probability regarding their opinion

Question 11

Does the expert witness need to disclose the basis of opinion?

Answer 11

Not on direct (and cannot disclose facts that would be inadmissible unless judge determines their probative value outweighs prejudicial effect)
May have to on cross

Question 12

Can an expert render an opinion on an ultimate issue in the case?

Answer 12

Yes, but in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, the expert may not state an opinion as to whether the defendant had such a mental state

Question 13

How may treatises be used during expert witness cross-examination?

Answer 13

Experts may be cross-examined using any publication established as a reliable authority by their testimony, another witness’s testimony, or judicial notice. These texts may be used to impeach the expert, and also may be introduced as substantive evidence under the learned treatise hearsay exception, but must be read into evidence (not an exhibit) while the expert is on the stand

Question 14

When may a party bolster/accredit their witness?

Answer 14

not until they’ve been impeached

Question 15

Who may impeach a witness?

Answer 15

Any side may impeach any witness (you can impeach your own).

Cannot impeach on a collateral matter

Question 16

What are the methods and devices of impeachment?

Answer 16

Impeachment may be by cross-examination eliciting discrediting facts or by introduction of extrinsic evidence (other witnesses or documents proving impeaching facts).

The traditional impeachment devices are:

(1) prior inconsistent statements, (2) bias,
(3) conviction of a crime,
(4) prior bad acts,
(5) opinion/reputation of untruthfulness,
(6) sensory deficiencies, and
(7) contradictory facts

Question 17

When may extrinsic evidence be introduced to prove a prior inconsistent statement?

Answer 17

Such evidence may be introduced to impeach a witness based on the proper foundation:

(1) witness is at some point given an opportunity to explain or deny, and the
(2) adverse party is given opportunity to examine witness about the statement

These foundation requirements are not applicable where it is (1) an opposing party statement, (2) inconsistent statement by a hearsay declarant, (3) where justice requires (unavailable witness)

Question 18

What are the rules governing impeachment by proof of prior conviction?

Answer 18

Witnesses can be impeached by prior conviction for a crime requiring dishonesty or a false statement (e.g., perjury, fraud, embezzlement, false pretense), whether a misdemeanor or a felony. The court must allow this.

A witness can also be impeached by prior conviction of a felony not involving dishonesty. The court has discretion to allow this, and can exclude if (1) in the case of a criminal defendant, the prosecution has not shown that the probative value outweighs the prejudicial effect, or (2), in the case of all other witnesses, the probative value is substantially outweighed by the prejudice (the R.403 balancing test).

In both cases, a remote conviction (more than 10 years since the later of the date of release or date of conviction) will be inadmissible unless its probative value substantially outweighs It’s prejudicial effect.

Question 19

When can prior inconsistent statements be admitted as substantive evidence?

Answer 19

if made under oath and as part of a formal hearing, proceeding, trial or deposition (but otherwise no)

Question 20

Must a witness be confronted with alleged bias while on the stand?

Answer 20

Within court’s discretion

Question 21

May extrinsic evidence of bias be introduced?

Answer 21

yes, within court discretion, even if the witness admitted bias on cross

Question 22

What is the effect of pardon on impeachment for prior conviction?

Answer 22

may not use to impeach if the witness was pardoned based on innocence or the witness has not been convicted of a subsequent felony

Question 23

How is a prior conviction shown?

Answer 23

Cross-examination, introducing record of judgment, testimony from witness, no foundation required

Question 24

When may a witness be impeached for prior misconduct?

Answer 24

A witness may be impeached by evidence of prior bad acts if those bad acts are probative of truthfulness. The only method of doing so is by confrontation on cross-examination. The inquiry must be in good faith. Extrinsic evidence of this will not be admissible, even if the witness denies the prior misconduct.

Importantly, an arrest itself isn’t a bad act. So you cannot be impeached by the inquiry “Were you arrested for embezzling money last year?” You can be impeached by asking “Did you embezzle money last year?”

Question 25

When may extrinsic evidence be introduced to prove contradictory facts?

Answer 25

Extrinsic evidence may be introduced to prove contradictory facts if:

(1) witness’s testimony on that fact is on a material issue,
(2) testimony is significant on the issue of credibility, or
(3) witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence

Question 26

Can you impeach a hearsay declarant?

Answer 26

yes, you can impeach the credibility of a hearsay declarant as if they had testified as a witness

does not need opportunity to explain/deny a prior inconsistent statement

Question 27

How may an impeached witness be rehabilitated?

Answer 27

explanation on redirect
good reputation for truthfulness
prior consistent statement

Question 28

What are the types of federal common law privilege?

Answer 28

Attorney-client
spousal immunity
privilege for confidential marital communication
psychotherapist/social worker-client
clergy-penitent
governmental

Question 29

When do state law privileges apply?

Answer 29

Diversity cases; may recognize further privileges like physician-patient, account-client, professional journalists

Question 30

Who may assert a privilege?

Answer 30

Privileges are personal to the holder, meaning they usually may only be asserted by the holder.

Question 31

When are privileges waived?

Answer 31

failure to claim
voluntary disclosure by privilege holder
contractual waiver

not waived when the non-holder wrongfully discloses without the holder’s consent, not waived for joint holder when co-holder disclosed, not abrogated by unknown eavesdropper

Question 32

What is attorney-client privilege?

Answer 32

protects comms between attorney and client during professional consultation

client must be seeking attorney’s professional services at the time, covers disclosures made before attorney accepts or declines the case (prospective clients protected)

comm must be confidential but this is not destroyed by presence of attorney or client representatives

covers comms made through 3rd persons like secretaries

client is privilege holder

privilege is indefinite, surviving client’s death

Question 33

Where does the attorney-client privilege not apply?

Answer 33

(1) if services sought to aid in commission of crime or fraud
(2) communications relevant to an issue between parties claiming through the same deceased client
(3) relevant to an issue of breach of duty in dispute between attorney and client
(4) where client has put legal services at issue

Question 34

What protections exist for attorney work product?

Answer 34

Not covered by attorney-client privilege, but protected from discovery

Question 35

What is the effect of voluntary disclosure of privileged material?

Answer 35

Voluntary disclosure of privileged material operates as a waiver of privilege only with respect to that material. Other undisclosed material will also be covered by the waiver only if the waiver was intentional, the other material is of the same subject matter, and they should be considered together with the disclosed material to avoid unfairness.

There is no waiver if disclosure was inadvertent and steps to rectify were taken promptly.

Question 36

What is the (state level) physician-patient privilege?

Answer 36

Confidential communications made between a physician and patient are privileged if

(1) a professional relationship exists;
(2) the information was acquired during treatment; and
(3) the information was necessary for treatment.

The patient holds the privilege.

Question 37

When does the physician-patient privilege not apply?

Answer 37

The physician-patient privilege cannot be raised

(1) where the patient has put their own physical condition in issue (e.g., personal injury suit);
(2) where the physician’s assistance was sought to aid wrongdoing;
(3) where the communications are relevant to a breach issue in dispute between the physician and patient;
(4) where there was a contractual agreement to waive;
(5) in a federal case applying federal law.

Question 38

What is the psychotherapist/social worker privilege?

Answer 38

Federally recognized. Applies to psychologists, psychiatrists, licensed social workers. operates like attorney-client privilege

Question 39

What is spousal immunity?

Answer 39

Spouses of criminal defendants may not be compelled to appear as witnesses by the prosecution. A person may further not be called to testify against their spouse in a criminal proceeding, regardless of whether their spouse is the defendant. Privilege belongs to witness-spouse (may choose to testify)

Must be a valid marriage, and privilege ends with the marriage.

Question 40

What is the privilege for confidential marriage communications?

Answer 40

in any civil or criminal case, confidential communications between the spouses are privileged. either spouse can refuse disclosure or prevent the other spouse from testifying. Marriage must exist at time of communication but the privilege itself survives the termination of the marriage. Communication must be made in reliance on the intimacy of the marital relationship

Question 41

Where are neither of the spousal privileges applicable?

Answer 41

legal actions between spouses, cases involving crimes against testifying spouse or either spouse’s children, communications in furtherance of joint crime or fraud

Question 42

May a claim of privilege be commented on by judge or counsel?

Answer 42

No