Witness

Question 1

Competence

Answer 1

Presumed unless proved otherwise

Question 2

Judges

Answer 2

may never testify

Question 3

Jurors as Witnesses at trial

Answer 3

Trial: may not testify as witness at trial in front of their co-jurors
Opposing counsel must be given the opportunity to object outside the presence of the jury.

Question 4

Jurors as witnesses After the trial

Answer 4

may not testify about:

(1) Statements made during the deliberations
(2) Effect of anything on a particular juror’s vote and
(3) Any juror’s mental processes

MAY Extraneous prejudicial information was brought in (e.g., newspapers)
Outside improper influences (e.g., threats)
Mistake in entering the verdict on the form

Question 5

Child witnesses

Answer 5

Court decides competency (no bright-line rule)
Factors:
Intelligence
Ability to distinguish between truth and falsehood.
Understanding importance of telling the truth

Question 6

Dead man statutes

Answer 6

A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate.
No Fed. Dead man, look for state statute.

Question 7

Impeachment

Answer 7

o Bias
o Character for untruthfulness
o Inability to perceive what they are testifying about
o Prior inconsistent statements
o Another contradictory witness or evidence

Question 8

Impeachment of a witness-forms

Answer 8

Reputation
Opinion
Specific instances

Question 9

Extrinsic evidence to impeach a witness

Answer 9

Extrinsic evidence of specific instances of untruthful conduct is generally not admissible to attack a witness’s truthfulness. However, on cross, specific instances can be asked about if it’s regarding truthfulness of
• the witness or
• another witness about whose character the witness being cross-examined has testified.

Question 10

Limits on cross-examination

Answer 10

Must have a good-faith belief in prior misconduct
•May not cross-examine a witness about an arrest
o May cross-examine about the underlying conduct that led to the arrest
o Extrinsic evidence generally cannot be used to impeach that specific instance of untruthfulness.
o Discussion of consequences is also prohibited
o Extrinsic evidence of specific conduct can be used to impeach on other grounds, e.g. bias.
O When the foundation for the extrinsic evidence (e.g., the check) is established through the witness being impeached, it is possible that the extrinsic evidence might be admissible to impeach the witness’s character for truthfulness.

Question 11

Criminal Convictions with crimes of dishonesty

Answer 11

a. Crimes involving dishonesty or false statement - Any prior conviction is admissible, subject to a 10-year restriction, whether a misdemeanor or a felony and regardless of the punishment

Question 12

Crimes not involving dishonesty

Answer 12

a. Subject to 10-year limitation (later of conviction or release date).
Rule: Admissible-felonies
1) If witness is the criminal defendant and crime is not crime of dishonesty
•Admissible if its probative value outweighs the potential prejudicial effect to D.
2)Witnesses other than the criminal defendant
•General Rule: Evidence must be admitted. To exclude, burden is on opposing counsel to overcome the FRE 403 challenge

Question 13

Conviction over 10 years

Answer 13

If more than 10 years has elapsed since conviction or release (whichever is later):
•Conviction is admissible only if the party offering the evidence shows that probative value of the conviction substantially outweighs the risk of unfair prejudice; and
•Proponent gives reasonable written notice of the intent to use the evidence to opposing counsel

Question 14

Convictions not admissible when

Answer 14

Pardoned
Annulled
Later found innocent
Rehabilitated

Question 15

Juvenile Convictions

Answer 15

Not admissible to impeach a D.

If witness is not defendant – admissible if offered to impeach truthfulness and if:
•Offered in a criminalcase
•Would be admissible if an adult conviction would be admissible; and
•Admitting evidence is necessary for fair determination of guilt or innocence
Note 13:A criminal defendant can use a witness’s juvenile conviction to impeach by showing bias.

Question 16

Prior inconsistent statements

Answer 16

o May not be used to impeach
o Prior inconsistent statement does not need to be a sworn statement
oAn attorney does not need to show the prior statement to the witness, but must show it to opposing counsel if requested. (FRE 613)
oExtrinsic evidence may only be introduced if the witness is given the opportunity to
explain or deny the prior inconsistent statement.
This opportunity to explain or deny does not need to take place before the statement is admitted.
Exceptions: No opportunity need be given to explain or deny if:
•Impeaching a hearsay declarant
•Admission of a party opponent (FRE 801(b)(2))

Question 17

Bias

Answer 17

Witness has a relationship to the party or victim (e.g., Mary Todd Lincoln)
Witness has an interest in the outcome of a case
Witness has an interest in testifying
o Foundation must be laid before extrinsic may be introduced.

Question 18

Sensory

Answer 18

May be impeached by showing witness has a deficiency in ability to perceive, recall
or relate information

Question 19

Impeaching a Hearsay Declarant

Answer 19

May be impeached by any evidence that would have been admissible had the declarant testified
o Similar impeachment treatment is given to a non-hearsay statements by a co-conspirator, agent, or authorized spokesperson.

Question 20

Rehabilitation

Answer 20

Explanation on redirect
o By reputation or opinion evidence with regard to character for truthfulness (if the witness’s character was attacked)
o By a prior consistent statement offered to rebut a charge that the witness lied

Question 21

Religious beliefs

Answer 21

Not admissible to attack or support a witness’s credibility

o Exception: May be used to show bias or interest

Question 22

Past recollections recorded

Answer 22

A memorandum or record regarding a matter about which a witness once had knowledge, but now has insufficient recollection upon which to testify
•Difference b/w present recollection refreshed and past recorded recollection:
o The item used to refresh the witness’s present memory is usually NOT admitted into evidence.
o The document used as a recorded recollection may be admitted into evidence.

Question 23

Lay witness opinion

Answer 23

Generally, may not testify about an opinion
o Opinion testimony is allowed if it is a rational impression.
Opinion must be based on perception and
Must be helpful to clear the understanding of a fact at issue
Cannot be scientific, technical, or specialized in nature

Question 24

Experts

Answer 24

Reliable: Scientific, technical, or specialized and

•Relevant: Will help the trier of fact understand evidence or a fact