V. Witnesses

Question 1

Competency of Witness

Answer 1

• INTANTS: must be capapble of understanding the difference between lying and telling the truth–meaning of under oath
  
  • GA: child automatically competent if they’re a crime victim
• MENTAL/PHYSICAL LIMITATIONS: basically, get what you can with them
• OATH OR AFFIRMATION: all witnesses must swear or affirm to tell the truth–contempt for failure to do so
• PERSONAL KNOWLEDGE: all witnesses, other than experts, must limit testimony to personal knowledge

Question 2

Dead Man’s Statute

Answer 2

• No deadman rule in GA or on FRE–only arises where it is explicity stated that one exists:
• A witness is not ordinarly incompetent merely b/c she has an interest (direct legal stake) in outcome of ligitation BUT under DMS, in civil action, an interested witness is incompetent to testify in support of her own interests against the estate of a decedent concenring communicatinos or trasnactions between the interested witness and decedent

Question 3

Writings in Aid of Oral Testimony: Refreshing Recollection

Answer 3

• a witness may not read from prepared notes or other documents; must testify based on current recollection BUT
• if memory fails them, he may be shown a document or ANY other tangible item to job memory
  
  • after looking atitme, witness must RETURN IT TO COUNSEL and testify from his now refreshed memory.
  • Item used not admitted into evidence unless opponent asks for it to be
  • Can even use documents prepared by counsel
• Opponent Safeguards:
  
  • 1) may inspect the item (if priviliged, does not waive privilige)
  • 2) may use it on cross
  • 3) may introduce it to evdience

Question 4

Past Recollection Recorded (hearsay Exception)

Answer 4

• Employed when witnesses needs facts too numerous to use simple refreshing recollection
• Foundation needed:
  
  • Witness cannot testify FULLY & ACCURATELY baased on memory alone
  • witnes had PERSONAL KNOWLEDGE at a former time
  • Writing was either MADE by witness or ADOPTED by witness when memory was fresh
  • Witness testifies that the writing is TRUE AND ACCURATE to the best of his knowledge
• Witness can refer to writing or read it while testifying BUT, although admittied into evidence, cannot go out with jury b/c emphasises it over other testimony

Question 5

Difference b/w Past Recollection Recorded and Refreshing Recollection

Answer 5

• Refereshing Recollection:
  
  • can use antyhing even if witness has never seen it
  • Cannot be read aloud
  • can be admitted into evidence but only by opposition request
• Past Recollection recorded
  
  • writing made or adopted by witness as true when memory fresh
  • Can be read out loud
  • Admitted into evdience

Question 6

Opinion Testimony: Lay Witness

Answer 6

• Admissible if:
  
  1. Based on witness’s PERCEPTION (personal knowledge)
  2. Rational
  3. Mundane, non-expert opinion
• Examples: (drunk/sober, speed, sane/insane (non clinical), emotions, handwriting, value of goods)
• Common objections
  
  • speculative
  • no foundation to show how opinion is based on personal knowledge
  • hearsay
  • not allowed to testify as to what other person was thinking or intending
  • outside the ken of the average juror (requires expertise)

Question 7

Opinion Testimony: Expert Witness Requirements

Answer 7

1. WItness is QUALIFIED by education and or experience to give these opinions
2. Witness represents a FIELD OF EXPERTISE or theory that is RELIABLE
3. Witness has APPLIED her expertise RELIABLY to the facts of this case
4. Witnes has BASED her opinion on RELIABLE facts & data

Question 8

Qualifications

Answer 8

• Expert Qualifications should be presented before any questions asking for expert optinons (foundational)
• most questions will determine the weight of the tstimony rather than admissibility

Question 9

Reliable Field of Expertise (daubert A)

Answer 9

• Trial judge as gatekeeper
• Is it a novel or controversial subject not ready for hte courtroom?
• EX. purely theoretical (can’t be tested); rejected by weight of scientific opinion; Not peer reviewed

Question 10

Expert Applied Expertise Reliably (Daubert Part B)

Answer 10

• Expert did not follow the procedures that make the science generally reliable
• Expert went too far (over extrapolated)

IN GA daubert does not apply to wokrers comp or admin cases

Also does not apply in crim cases, thgouh scientific evidence must have reached a verifiable stage of scientifc certainty

Question 11

Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

Answer 11

• Allowed on direct examanion of party’s OWN EXPERT:
  
  • relevant protions of treatise, periodical or pamphlet may be read into evidence as substnative evidece (to prove truth) if established as a relaible authority
    
    • GA ALLOWS ONLY ON CROSS
• On Cross Examantion of opponent’s expert:
  
  • read into evidence to impeach and contradict opponent’s expert if established as reliable authority–comes in as substnatitive evidence
• learned treatise may not go out with jury

Question 12

Ultimate Issue Rule

Answer 12

• FRE have abolished ultimate issue rule
• Opinion testimony (lay or expert) is permissible even if it addresses an ultimate issue in the case
• BUT opinions, lay or expert, still must be HELPFUL TO THE FINDER OF FACT
• What is not helpful:
  
  • 1) opinions as to matter the jury can DECIDED FOR THEMSELVES: (d was careless; intended to defraud; justified as self-defense)
  • 2) Opinions phrased in LEGAL TERMS that the jury will NEED TO APPLY: was negligent, was proximate cause, lacked capacity
• Judge is monopolist on legal terms

Question 13

Cross-Examination

Answer 13

Federal Rules: Should be Limited to subject of direct

GA: wide open

Question 14

Methods for Impeachment

Answer 14

1. Contradiction
2. Perception
3. Memory
4. Communication
5. Veracity
   
   • Bias, Prejudice, Interest
   • Character for Untruthfulness
   • Prior Convictions
   • LIed Before
   • Prior INconsistent Statement

Question 15

What to consider with methods of impeachment

Answer 15

1. Can the impeaching fact be proven by EXTRINSIC EVIDENCE (doc or other testimony) or is party limited to confronting the witness with the impeaching facts on cross?
2. When extrinsic evidence IS permissible, must the witness first be CONFRONTED with impeaching fact as a prerequisit to inroducing any extrinsic evidence?

Question 16

Impeachment: Contradiction

Answer 16

• Scenario Cross examiner may confront a witness with facts that contradict what was said on direct.
  
  • if admits her mistake or lie, impeached by contradiction.
  • If she sticks with it, issue is whether extrinsic evidence may be introduced to prove contradiction
• RULE:
  
  • Extrinsic evidence is not allowed if the fact at issue is COLLATERAL (no significant relevance for case)
  • Extrinsic evidiecne is allowed if hte fact at issue IS NOT COLLATERAL
• Bias is never collateral (e.g. are you romantically involved with D? No; can introduce evidence contradicting that)

Question 17

Impeachment: Problems with Perception or Memory

Answer 17

• a party may always question a witness regard whether they were able to percieve (see, hear, feel taste) or remember what they claimed
• Problems with perception or memory are NEVER COLLATERAL

Question 18

Communication

Answer 18

• Did the witness say what he meant and mean what he said?
  
  • Ex. you said he was six feet tall, i’m six feet tall, was he shorter or taller than I am

Question 19

Veracity: Bias, Prejudice, INterest or Motive to Misrepresent

Answer 19

• EX. witness is a party, friend relative or employee of party; expert witness being paid by party; person with grudge against party
• SPECIFIC BIAS OR PREJUDICE: must be specific to this party. ALawys admissible
• GENERAL BIAS OR PREJUDICE: attitude towards a group to which party belongs. Admissible unless extraorindary
• Must be confronted with bias while on stand
• If contronted & denied, may be proven by extrinsic evidence
• NEVER COLLATERAL ISSUE

Question 20

Veracity: Character Evidence that witness is untruthful

Answer 20

• At issue when witness’s statements are admitted at trial FOR THEIR TRUTH
• Character witness may testify to subject witnesse’s REPUTATION for untruthfulness
  
  • must lay foundation that says character witness has spoken to people in subject’s community and asked about truthfulness and based on that they’ve come to their conclusion
• May testify to OWN OPINION
  
  • must establish that they know the person and interacted with them and based on that interaction, they’ve come to the conclusion
• MAY NOT testify to SPECIFIC INSTANCES on Direct exmation

Question 21

Veracity: IMpeachment by Prior Convictions

Answer 21

• Probative value=person who has been convicted of a crime is MORE LIKELY TO LIE under oath than a person with an unblemished record (less respectul of law)
• _Two permissible convictions: _
  
  • 1) conviction of any crime (felony or misdmeanor) where prosecution required to prove DECEPTION OR FALSE STATEMENT
  • 2) if did not rewqurie proof of false statement, must be a FELONY and cout may exclude it based on prejudice to a party in the case
• Time Limiation: conviction or release from prison (whichever later) must be w/in 10 years of trial.
  
  • if more than, cannot be used unless proponent provides pre-trial notice and judges finds probative value outweighs prejudicial effect
• This applies in Civil & Criminal

GA does not allow 1) nolo contendre please; 2) guilt and subsequent discharge undre 1st offender program

Question 22

Veracity: Impeachment w/ Evidence the Witness has lied Before about a matter Unrelated to this Case

Answer 22

• Prosecutor must have GOOD FAITH basis for the inquriy and permission to make the inquriy subject to trial courts discretion
  
  • Usually is collateral, so you must accept witnesses answer

Question 23

Veracity: Prior Inconsitent Statement

Answer 23

• Witness may be impeached by showing that on some other occassion, she made a statement–orally or in writing) that is inconsistent with testimony at trial
• A prior incosistent statement of a witness is admissible for its SUBSTANTIVE USE in addition to impeachment ONLY IF:
  
  1. It is admissible under the HEARSAY RULE
  2. OR made under OATH at a trial or other legal proceeding

Unless the witness is aparty opponent, the witness must be given opportunity to, at some point, admit, deny or explain making the prior statement (Confrontation)

Question 24

Difference b/w Georga & fedearl rules on prior inconsistent statement

Answer 24

• GA:
  
  • 1) always admissible for substnative evidence as well (as long as the person is at trial and allowed to be crossed
  • 2) party must first conront a witness with statement, give them a chance to admit, explain or deny before offering extrinsic evidence of statement

Question 25

Bolstering Own Witness/rehabilitation

Answer 25

• Law assumes all witness are credible until show othewise
• May not bolster credibility until AFTER the witness’s credibility has been attacked

What can be done?

• Prior consistent statements of a testifying witness are admissible ONLY if they rebut an attack on that witness’s credibility (e.g Party A testified on B’s behalf; bias shown that they are in a relatinoshpi; proof that she made same statement to police previous to relatinoshpi
• May call a acharter witness to present reputation and optinoin evidence as to that witness’s truthful chracter if their credibility ahs been attacked

Question 26

Impeachment of Hearsay Declarants

Answer 26

• Any impeachment method may be used to attaack the credibility of a hearsay declarant whose statement was admitted into evidence