Witness Flashcards
W - Competency - Gral Rule + exceptions
Everyone with:
1) Personal knowledge
2) W/present recollection
3) Ability to communicate
EXCEPT for young children or those prohibtied by state law or court rule
- state law controls matter
W - Competency - Basis for W testimony
Under oath on basis of PERSONAL KNOWLEDGE (“fisrt hand”) on the fact.
- even if “equivocating” - i.e. “I think”, “I recall”
- Jury qualifies and weights it
W - Competency - Disqualification Causes (4)
- Untruthfulness
- Lack of observation/perception
- Lack of memory/recollection of the events
- Uncommunicative or lacks ability to communicate
W - Competency - Insanity rule
Gral Rule: Doesnt per-se disqualify as a W
W - Competency - Judge and Juror as W
- Judge: not on trial he is presiding
- Juror: not on trial he is sitting in
- Post publication of verdict, juror is allow to testify about extraneous prejudicial info, outside influece, verdict from mistake
W - Competency vs Credibility
- Competency: admissibility by JUDGE
- Credibility: impeachment decided by JURY
W - Impeachment - Gral / purpose + standing
- Introduction of E to cast doubt upon W credibility/reliability
- NOT for the merits of the case itself
- By either party
W - Impeachment - Admissible when…
- IF character of the W has been previously attacked by the other party
- MP + balance test rule applies
W - Impeachment - Elements to be showed by E for Impeachment (6)
- Bias: actual/implied, i.e. personal relation W w/ party, attorney
- Mental/sensory perception problem: affecting recitation of event. i.e. hearing loss, bad eyesight
- Contradiction of testimony: has to be material
- Character and Prior Conduct: if relevant (See rules before)
- Prior Convictions: for crimes involving untruthfulness
- Inconsistent Statements: w/prior statement to oilice or in preliminary procedure
W - Impeachment - Collateral Facts Rule
Extrinsic E NON-ADMISSIBLE to attack credibility of W’s testimony
- ADM only if relevant to substantive issue on case
i. e. W1: “I saw X kill Y. I was wearing red”. - W2 could say “X didnt kill Y” bc it contradcits substantive factual issue stated by W1, BUT could not say “W1 was wearing blue”, bc only purpose is to create doubts on W2 credibility and not relate to issue
- Videotape of murder and it show W1 wearing blue, it can be used bc is relevant to substantive issue
W - Impeachment - use of E for impeachment for as substantive E
- OK if not excluded
- If permitted usually jury will give limited instructions to jury to consider for impeachment purposes only
W - Impeachment - Evidence on W to attack/support his credibility (3) FRE 608
- Testimony about reputation in community about his truthfulness or untruthfulness
- Opinion as to his character
- Showing of Specific Instances of conduct
W - Impeachment - Evidence on W to attack/support his credibility - Reputation /by whom, when
- Of neutral/generalzied ocmmunity
- Only as rebutal of previous claim of untruthfulness
W - Impeachment - Evidence on W to attack/support his credibility - Showing of specific instances of conduct / when, content
- Not of previous convicition of crime (special rules)
- Only by cross-examination of W - NOT by extrinsic E such as calling W to to testify on unrelated issue.
- Potentially about other W’s actions (also by cross-exam)
W - Impeachment - Evidence on W to attack/support his credibility - Showing of CONVICTION OF CRIME / Grounds for ADM (2)
- Felony w/punishment of death or more than 1 year in prison
- Crime involving dishonesty (fraud, theft, etc) or false statement regardless of punishment.
NOT for misdemeanors
W - Impeachment - E of PRIOR CONVICTION- Rule for Accused as W
Use of this E only if MP + balance test where probative value outweights prejudice
W - Impeachment - E of PRIOR CONVICTION- Time Limit Rule / gral rule, eception
Conviction of felony/dishonest crime if conviction or priosn release over 10 years ago (the latest of both)
- EXCEPT: on interest of justice + courts believe prboative value outweights prejudicial effects
W - Impeachment - E of PRIOR CONVICTION- Rules on Pardon, annulment, certificate of rehabilitation
Bars admission of prior conviction E IF:
- no subsequent felony
- Pardon is based on findings of innocence
W - Impeachment - E of PRIOR CONVICTION- Rule for Juvenile Adjudications / rule for civil-criminal
- Criminal case NOT ADMISSIBLE against D
- Civil and criminal case ADMISSIBLE admisible against W IF similar condiction to adult convicition + necessary to determine issue of guit or innocence
W - Impeachment - E of RELIGIOUS BELIEFS- Rule
INADMISSIBLE for impeachment
- ok for other narrower purposes (i.e. bias, personal interest)
W - Impeachment - E of PRIOR W’s STATEMENTS- Rule
ADMISSIBLE if it is incosnitentor creates doubt regarding current testimony
- not for other purposes - Collateral Fact Rule applies
W - Testimony - Gral Rule of admission / opinion on hwta nd on what not, purpose
- As opinion of issue of fact
- Provides help to jury to decide on issue that is beyond their normal knowledge
- Can not be opinion on legal conclusion
W- Interrogation - Formal Procedure Gral
- Manner and order is discretional of court
- 1 Q at the time
W- Interrogation - Leading Questions Rules
Gral Rule: Not in direct examination unless necessary to develop testimony (very limited), OK in cross examination
EXCEPTION: Ok in direct examination when:
- Hostile W
- W of the adverse party
- Adverse party
(assumption these W will not want to be led)
W- Interrogation - Writing (or other) to refresh memory /when and how
- For friendly W pre or during testimony
- Not read from document but testify from memory
- If photo/doc no admission necessary but needs to be available for adversay and allow for cross examination on it.
- Can later be introduced into E (normal admissible reqs)
- Any privilege in the doc is waived
W - Interrogation - Use of Prior Statement by W / Admissibility Rule
1) If introduced to show inconsistency with testimony it must:
- Give chance to W to deny or explain
- Opposing councel to cross examin W
2) If not for inconsistency purposes need only to show to other counsel upon request
W- Interrogation - By Court sua ponte or bc of request
Judge cannot show any bias or partiallity
W- Interrogation - Exclusion of W
- By request from party
- Removed from proceeding
- To avoid him from hearing other W and framing his testimony in something different from his own personal knowledge
- doesnt usually proceed for parties as W
W - Types of testimony (2)
- Opinion testimony by lay witness
- Expert testimony
W - Opinion testimony - Gral /by whom, court involvement
- By law witness
- Court discretion to admit, if it meets criteria
W - Opinion testimony - Admissibility Criteria (3)
- Rationally based on personal knowledge
- Helpful for the jury to understand fact in issue
- Not within expert W testimony scope
W - Expert Testimony - Gral / when, objection,
- When issue requires scientifc/technical/specifci knowledge help for the jury to understand E or issue at fact
- Court by request tor sua ponte can enter order to show necessity of expert
- Party objecting willusually present motion in limine to exclude prior to trial
- Judge with great discretion
W - Expert Testimony - Expert Qualifications SKEET
- Judge to assess discretionally and justification to compensation of expert
- Skills
- Knowledge
- Experienec
- Education
- Training
NO LICENSE OR DEGREE NECESSARY
W - Expert Testimony - Reliability - Gral
- judge as “gate keeper” under FRE
- Can exclude testimony that could ptentially affect jury’s even/fair consideration of fact
- Application to SRA Daubert Reliability Conditions
W - Expert Testimony - Reliability - Daubert Reliable Conditions SRA
- Sufficient facts to base testimony must exist and be presented
- Reliable pples and technichs are applied - scientifically sound that are “generally accepted” in the community (not majority per se, but more than educated guess)
- Applied reliably and reasonably to the facts at issue.
W - Expert Testimony - Basis for opinion (3) / charactersitics and sources
- Based on personal perception and provided facts
- Reasonable and more than speculation
- On facts known, as data or facts provided at or before hearing
- Facts dont need to be admissible E AS LONG as they the type an expert would reasoanbly rely
- If based on inadmissible facts, they cannot be disclosed to jury
W - Expert Testimony - Basis of testimony - Disclosure / gral rule
Gral Rule: NO DISCLOSURE
UNLESS:
- required by judge
- required in cross examination
W - Expert Testimony - Basis of testimony - Disclosure / Rule for Hearsay
If facts/data to be disclosed and is hearsay,
- Judge can give limiting instruction or exclude the E
