Testimonial Evidence / Witnesses

Question 1

Qualified Expert Witness Requirements

Answer 1

A witness is qualified to provide expert opinion testimony if the witness has specialized:

i) knowledge,
ii) skill,
iii) experience,
iv) education, or
v) training in a subject that pertains to an issue in the case.

Whether a witness meets these qualifications is a preliminary question for the court—not the jury.

The court is not bound by the rules of evidence in deciding such questions.

Therefore, the court may consider otherwise inadmissible hearsay in determining if a witness is qualified to provide expert opinion testimony.

Question 2

If a child’s competency is questioned, then the court must evaluate the child’s:

Answer 2

i) intelligence
ii) ability to differentiate between truth and falsehood and
iii) understanding of the importance of telling the truth.

If the child is unable to understand the requirement to tell the truth, the child is incompetent to be a witness.

Additionally, as a non-expert witness, the child must have personal knowledge of the matter on which he/she intends to testify.

Question 3

Bases of Expert’s Opinion Testimony

FRE 703

Answer 3

“An expert witness typically may offer an opinion on an ultimate issue. That opinion may be based on facts and data that the expert has personally observed or has been made aware. When such facts and data are not admissible (e.g., because they constitute hearsay), the opinion itself is still admissible if experts in that particular field would reasonably rely on those kinds of facts and data in forming an opinion.”

Expert opinion testimony may be based on facts/data:

i) personally observed by expert
ii) made known to expert during trial OR
iii) made known to expert before trial if other experts would reasonably rely on fact/data when forming opinion

_***Otherwise inadmissible facts/data may be admitted if probative value in helping jury evaluate opinion substantially outweighs prejudicial effect***_

Question 4

What can a lay witness testify about?

Answer 4

A lay witness may testify to any relevant matter of which he/she has personal knowledge.

This requires that the witness:

(1) perceived the matter firsthand AND
(2) have a present recollection of that observation.

Question 5

A lay witness is prohibited from giving opinion testimony unless common-sense impression that:

Answer 5

1) is rationally based on witness’s perception
2) helps clarify witness’s testimony or fact issue AND
3) is not based on scientific/technical/specialized knowledge

Question 6

Can a defendant waive the protection of statements made during plea negotiations?

Answer 6

YES.

A defendant’s statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.​

Question 7

A witness can testify to any ____________ matter of which she has ___________ _____________ even when other evidence could be used to establish the same facts.

Answer 7

A witness can testify to any relevant matter of which he/she has personal knowledge—even when other evidence could be used to establish the same facts.

• Personal knowledge means that the witness perceived the matter firsthand and has a present recollection of the matter.
• This can be established by the witness’s own testimony.

Question 8

Witnesses

Competence

Answer 8

Generally, every person is presumed to be competent to be a witness.

Common-law prohibitions on a witness’s ability to testify because of a lack of religious belief or conviction of a crime are inapplicable in proceedings governed by the Federal Rules.

Questions of mental competence generally go to the weight rather than the admissibility of the testimony.

However, in cases that turn on state law, such as diversity cases, a witness’s competency is determined by state law.

When a question of witness’s competency is raised, the issue is one for the judge to decide.

Question 9

Is it up to the judge or jury to decide when a question of witness’s competency is raised?

Answer 9

When a question of witness’s competency is raised, the issue is one for the judge to decide.

Question 10

Witnesses

Personal Knowledge

Answer 10

A non-expert witness must have personal knowledge of a matter in order to testify about that matter.

Personal knowledge may be established by the witness’s own testimony as well as through other means.

Question 11

Witnesses

Oath or Affirmation

Answer 11

A witness must give an oath or affirmation to testify truthfully.

The oath or affirmation must be in a form designed to impress that duty on the witness’s conscience.

An interpreter must give an oath or affirmation to make a true translation.

Question 12

Witnesses

• Juror as Witness*
• At Trial & After Trial*

Answer 12

1. At Trial

A juror may not testify as a witness at trial in front of the members of the jury.

If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury.

A juror may be called to testify outside the presence of the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members).

2. After Trial – “No impeachment”Rule

During an inquiry into the validity of a verdict, a juror generally *may NOT testify about*:

i) Any statement made or incident that occurred during the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.

Exceptions:

A juror *MAY* testify about whether:

i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); OR
iii) A mistake was made in entering the verdict onto the verdict form.

The mistake exception, item (iii) above, does not extend to mistakes about the consequences of the agreed-upon verdict.

Grand jury: The same rule applies regarding a challenge to the validity of an indictment by a grand jury.

Question 13

Does the right to an impartial jury override the “no impeachment” rule when a juror’s post-verdict statement reveals that some jurors were under the influence of alcohol and drugs during the trial?

Answer 13

NO.

This right does not override the “no impeachment” rule when a juror’s post-verdict statement reveals:

i) that some jurors were under the influence of alcohol and drugs during the trial, OR
ii) that a juror failed to disclose a pro-defendant bias during voir dire.

Question 14

Does the right to an impartial jury override the “no impeachment” rule when a juror makes a clear post-verdict statement that he relied on racial stereotypes or animus to convict a criminal defendant?

Answer 14

YES.

This right overrides the “no impeachment” rule when a juror makes a clear post-verdict statement that he relied on racial stereotypes or animus to convict a criminal defendant, and that the animus was a significant motivating factor in the juror’s vote to convict.

Question 15

Witnesses

Child as Witness

Answer 15

The competence of a child depends on:

i) her intelligence,
ii) her ability to differentiate between truth and falsehood, and
iii) her understanding of the importance of telling the truth. Wheeler v. United States, 159 U.S. 523 (1895) (finding a five-year-old child competent to testify at a capital murder trial).

A child who is unable to understand the requirement to tell the truth is incompetent to be a witness.

There is, however, no specific age at which a person becomes competent.

Under federal law, a child who has suffered abuse or witnessed a crime is rebuttably presumed to be competent to testify.

Question 16

Witnesses

Dead Man’s Statute

Answer 16

At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate, unless there was a waiver.

• Dead Man’s Statutes do not apply in criminal cases.

The Federal Rules do not include such a restriction, but most jurisdictions have adopted such “Dead Man’s Statutes,” which may be applicable in federal cases when state law applies (i.e., diversity cases).

Question 17

Witnesses

• Dead Man’s Statute*
• Protected Parties*

Answer 17

The rationale of a Dead Man’s Statute is to protect a decedent’s estate from parties with a financial interest in the estate.

Therefore, protected parties generally include an:

i) heir,
ii) legatee,
iii) devisee,
iv) an executor, or
v) an administrator of an estate.

Question 18

Witnesses

• Dead Man’s Statute*
• Disqualified Witnesses*

Answer 18

Any person directly affected financially by the outcome of the case may be disqualified as a witness under a Dead Man’s Statute.

A predecessor in interest to the party may be disqualified in order to prevent circumvention of the statute by transference of property to a relative or friend.

Question 19

Witnesses

• Dead Man’s Statute*
• Interested Person*

Answer 19

A personal representative of the decedent or a successor in interest may also be protected under a Dead Man’s Statute as an interested person.

Question 20

Witnesses

• Dead Man’s Statute*
• Waiver*

Answer 20

An interested person or protected party may waive the protection afforded by a Dead Man’s Statute in several ways, including:

(i) failing to object to the introduction of testimony by a disqualified witness OR
(ii) introducing evidence of a conversation or transaction to which the statute applies.

Question 21

Does a defendant who testifies to a preliminary question, such as the voluntariness of the defendant’s confession, open himself up to cross-examination on other issues in the case?

Answer 21

NO.

A defendant in a criminal case who testifies as to a preliminary question, such as the voluntariness of the defendant’s confession, has not opened himself up to cross-examination on other issues in the case.

Example:

Here, the defendant testified as to whether his confession at the police station was voluntary, which is a preliminary question.

On cross-examination, the prosecution cannot ask a question about what the defendant told his coworker the night before his boss was murdered.