Witness and Testimonial Evidence

Question 1

Personal Knowledge and Oath

Answer 1

Witnesses are Competent to testify if they have personal knowledge:

1. Perceived the Event
2. Remember the Event
3. Can communicate what they saw
4. Sincerity; declare they wil testify truthfully

Question 2

Common Law Competency Disqualifications Abandoned

PA DISTINCTION

Answer 2

Lack of Religious Belief (NOT IN PA)

Infancy

Mental Incompetency

Prior Convictions (PA DISTINCTION civil cases only)

Interest

PA DISTINCTION: retains restrictions that are not expressed in the Federal Rules of Evidence (perception, communication, memory, sincerity/truthfulness).

Question 3

Dead Man Acts

PA DISTINCTION

Answer 3

Typical Statute: An interested survivor cannot testify for his or her interest against the dead man or dead man’s representatives about communications or transactions with the dead man in a civil case unless there is a waiver.

Elements of Statute:

1. witness testifying must have a direct stake in the outcome
2. witness must be testifying for that interest
3. witness must be testifying against dead man or his reps.
4. witness is barred from testifying on matters that decedent could contradict if decedent were alive (PA EXTENDS to all pre-death events)
5. ONLY IN CIVIL CASES
6. Dead Man Act can be waived if dead man’s testimony is something in front of jury via deposition

State Dead Man Statute can apply in Federal Court if State whose substantive law applies has such a statute

Question 4

Objectionable Questions

Answer 4

1. Narrative. (“Q. Tell us everything relevant that happened on that day.”)
2. Leading. (“Q. Isn’t it true that the sound you heard was like a pistol shot or was it otherwise?”)
3. Leading permitted in certain situations.

• Cross-Examination
• Necessity and Convenience Requires it
• Witness is handicapped in some way
• When examining adverse party, or party in control by other side, or hostile witnesses

1. Misleading or Compound or Argumentative. (Q. “Have you stopped beating your spouse?”)

Question 5

Witness Use of Writings in Aid of Testimony: Basic Rule

Answer 5

Basic Rule: Witness usually cannot read testimony from previously prepared document but may use a writing in aid of oral testimony in two situations when the witness can=t remember. Two situations are 1) refreshing recollection and 2) recorded recollection.

Question 6

Refreshing Recollection

Answer 6

When witness memory fails, anything can be used to jog the memory of the witness. The witness cannot read from the writing when testifying. Adverse party is entitled to have writing produced at trial, cross-examine witness on writing, and to introduce portions relating to witness’s testimmony into evidence.

Question 7

Recorded Recollection

Answer 7

If witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.

Foundation for Recorded Recollection requires a showing that:

1. witness at one time had personal knowledge of facts in writing
2. writing made by witness or under her direction, or she adopted it
3. writing timely made when fresh in her mind
4. the writing is accurate/reliable
5. witness has insufficient recollection to testify fully and accurately

Writing admitted by being READ into evidence. EXCEPTION TO HEARSAY.

Question 8

Lay Opinion

Answer 8

ADMISSIBLE IF:

1. Rationally based on the perception of the witness (“I saw the automobile and it was going about 25 m.p.h.”- admissible)
2. Helpful to the trier of fact (“In my opinion the driver was grossly negligent” - not admissible even if rationally based upon perception)
3. Not based on scientific, technical, or other specialized knowledge

Situations Where Lay Opinions ADMISSIBLE

• general appearance or condition of person
• state of emotion of person
• matters involving sense recognition
• voice or handwriting identification
• speed of moving object
• value of his own services
• rational or irrational nature of another’s conduct
• intoxication of another

Question 9

Expert Opinion

PA DISTINCTION

Answer 9

Four basic requirements for Expert Testimony:

1. subject matter is one where scientific, technical, or other specialized knowledge would assist trier of fact (expert opinion will assist trier of fact if it is relevant and reliable)
2. witness is qualified as an expert (possesses special knowledge, skill, experience, training, or education)
3. Expert must possess reasonable certainty or probability regarding the opinion (elicited in form that suggest more than guesswork)
4. Opinion must be supported by a proper factual basis ((i) withing personal knowledge (ii) facts made known to expert at trial (iii) not known personally but supplied outside court and of a type reasonably relied upon by experts in particular field

PA DISTINCTION:

1. The question is general acceptance of the methodology (not reliability of methodology).
2. requires “knowledge beyond that possessed by the average layperson,”
3. Same
4. Same BUT requires Expert to disclose basis of opinion

Question 10

Learned Treatise

PA DISTINCTION

Answer 10

Basic Rule: A statement contained in a learned text, treatise, article, periodical or pamphlet concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by (a) reliance by your expert on direct examination, (b) admission on cross-examination of your opposing expert, (c) testimony of any expert or (d) judicial notice.

Limitations

• Expert must testify (at trial or deposition) unless judge takes judicial notice.
• Treatise is admitted by being read to the jury. Text itself is not received as evidence.

PA DISTINCTION: Cannot be used to prove truth of the content

Question 11

Cross-Examination

Answer 11

1. Party has absolute right to cross-examine a witness who testifies live. (Witness refuses to answer any crossexamination questions after testifying on direct. Direct must be stricken.)
2. Cross-examination should not exceed the scope of direct. I.e., one may cross-examine on any issues that were raised impliedly or expressly on direct examination.
3. Collateral Matters Doctrine: Impeachment by contradiction of the witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness as to a collateral matter.

Question 12

Credibility and Impeachment Rules

Answer 12

Focus is on only one issue - the credibility of the witness. This is a trial w/in a trial where only issue tried is credibility of a witness. ANY WITNESS CAN BE IMPEACHED.

Question 13

Acrediting Own Witness

Answer 13

No bolstering own witness unless there has first been an appropriate impeachment. We assume truthfulness first. CANNOT INTRODUCE PRIOR CONSISTENT STATEMENT, unless one of prior id.

Question 14

Accrediting Own Witnesses-Prior Consistent Statement

PA DISTINCTION

Answer 14

Prior consistent statement would be admissible if the statement is one of identification. A prior out-of-court statement of identification that was made by a witness who testifies at trial is excluded from the definition of hearsay and, therefore, may be admitted as substantive. PERSON MUST BE AT COURT AND SUBJECT TO CROSS but need not testify at court about it.

PA DISTINCTION: The rule extends to identification of either person or thing and witness must testify to making the prior identification.

Question 15

Impeaching Adversaries Witness

Answer 15

Basic FIVE impeachment Techniques:

1. prior-inconsistent statement
2. showing of bias or motive to misrepresent
3. prior conviction of a crime
4. specific acts of deceit may be inquired into in cross-examination
5. bad reputation for truth and veracity

Questions Relevant to Each Impeachment Technique are two:

1. Can you use extrinsic evidence to drive home impeachment OR are you limited to cross-examination only
2. If you can use extrinsic evidence, do you have to first lay a foundation

Question 16

Prior Inconsistent Statement-Witness must be Available

PA DISTINCTION

Answer 16

Basic Rule: The credibility of a witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness’s present incourt testimony.

• Generally admissible only to impeach - not for its truth - not affirmative or substantive evidence BUT
• if the prior inconsistent statement was given under oath AND at a trial, hearing or other proceeding or in a deposition, such a statement is admissible for its truth.
• Extrinsic evidence is admissible to prove the prior inconsistent statement.
• Foundation: Witness should be afforded an opportunity to explain or deny the making of the inconsistent statement
• Prior Inconsistent Statement of a party qualifies as an admission (opposing party statement)

PA DISTINCTION:

1. written, signed and adopted by the witness
2. a contemporaneous audio or videotape recording of an oral statement by the witness
3. Foundation: Statement must be disclosed (if oral) or shown (if written) to witness during cross-examination, witness must be given opportunity to explain or deny the statement, and opposing party must be given opportunity to question the witness about the statement.

Question 17

Bias, Interest, Motive

Answer 17

May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness. Have to ask about motive, bias, interest first THEN give extrinsic evidence.

Question 18

Prior Convictions

PA DISTINCTION

Answer 18

Prior Convictions are usable to impeach credibility if the conviction is for the proper kind of crime. (Arrest and indictment NOT ENOUGH) Pending Review/Appeal doesn’t matter.

Convictions Usable to Impeach:

• Any crime (felony or misdemeanor) if it involves dishonesty (meaning “deceit”) or false statement. E.g., fraud, larceny by trick, embezzlement, perjury but not robbery or ordinary larceny because no deceit or false statement. No discretion to exclude it. OR
• A felony (i.e., a crime punishable by more than one year) not involving dishonesty (i.e., deceit) or false statement is admissible to impeach in the discretion of the Court. E.g., robbery, ordinary larceny, felony assault. Misdemeanors are not admissible to impeach if they do not involve deceit or false statement. AND
• Convictions can’t be too remote - general guideline is 10 years. If more than 10 years have elapsed from later of date of conviction or date of release from confinement, the conviction is generally inadmissible - even if it is a crime of dishonesty (deceit) or false statement

Pardon: conviction can’t be used to impeach if witness pardoned and: (1) pardon based on innocence; (2) person pardoned not convicted of subsequent felony

Extrinsic Evidence of Conviction admissible (certificate of conviction and no foundation necessary).

PA DISTINCTION:

• admits only crimes of dishonesty or false statement, and they are admissible regardless of prejudicial impact; the court does not balance.
• Crimes of dishonesty or false statement: perjury, bribery, tax evasion, burglary, criminal trespass, robbery, bribery, larceny, theft, receiving stolen property, unauthorized use of an auto, unauthorized use of a credit card, tax evasion, criminal trespass.
• NOT crimes of dishonesty or false statement: assault, murder, rape, possession of drugs with intent to distribute, disorderly conduct, prostitution.
• • Juvenile adjudications are generally admissible to impeach in criminal cases.

Question 19

Specific Acts of Deceit/Lying

PA DISTINCTION

Answer 19

Specific acts of deceit or lying may be asked about in cross-examination. ACT must be probative of truthfulness.

• Must inquire in good faith
• NO Extrinsic Evidence allowed
• Only limited to ASKING QUESTIONS

PA DISTINCTION:

Not allowed. No cross-examination concerning witness’s prior bad acts even if probative of untruthful character.

Question 20

Bad Reputation of Opinion for truth and veracity

Answer 20

Can show that witness has a poor reputation for truthfulness. May include evidence of reputation in business circles as well as in community in which witness resides. Impeaching Witness can give own opinion as well.

Question 21

Rehabilitation After Impeachment

PA DISTINCTION

Answer 21

1. Good Reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation/opinion for truth).
2. Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive.

• _​_Not usually to rebut charge of prior inconsistent statement.
• To rebut charge of recent fabrication or improper influence or motive.
• MUST be pre-motive statement
• Admissible for its truth

PA DISTINCTION:

• Prior consistent statements are admissible to rebut claim of improper influence or motive or recent fabrication and also admissible in response to impeachment with prior inconsistent statements or to rebut a claim of faulty memory.
• Prior consistent statements are not admissible for truth of the statement, only to bolster in-court testimony
• Statement must have been made pre-motive or must pre-date alleged on-set of faulty memory or support explanation or denial of prior inconsistent statement.