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Evidence 101 > Witness and Testimonial Evidence > Flashcards

Witness and Testimonial Evidence Flashcards

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1
Q

What two qualifications does the FRE require for witness competency?

A
  1. Witness must have personal knowledge of the matter about which he is testifying
  2. Witness must declare he will testify truthfully (take oath).
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2
Q

Who may not testify under any circumstances?

A
  1. The presiding judge

2. The jurors

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3
Q

Who MAY not testify because of possible incompetency?

A
  1. Particular child may be held incompetent at discretion of judge
  2. Insane person may testify so long as he understands the obligation to speak truthfully.
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4
Q

What is a Dead Man Statute?

A

Generally states that an interested survivor CANNOT testify for his interest against the decedent about communications or transactions with the decedent in civil cases, unless there is waiver (from decedent’s representatives or via deposition)

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5
Q

A sues B for breach of oral K. B states he did receive the offer but claims he never accepted it. B dies. A testifies that B said “I accept your offer”. Admissible?

A

No, dead man statute excludes it.

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6
Q

What types of examination questions are impermissible on direct examination?

A
  1. Narrative- “tell us what happened that day”
  2. Leading- “Isn’t it true you heard the shot?”
  3. Misleading-“Have you stopped beating your wife?”
  4. Compound-“where were you and do you like cheese?”
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7
Q

When are leading questions permissive?

A
  1. On cross examination
  2. To elicit preliminary/introductory matter
  3. When the witness needs aid to respond because of loss of memory, immaturity, or physical/mental weakness
  4. When its a hostile witness
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8
Q

What may you use for a present recollection?

A

You may use any writing or thing to revive a witnesses recollection. This is considered “Refreshing Recollection”. Witness generally may not read from the writing however.

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9
Q

What do you do if your witness cannot remember the relevant events even after reading the writing?

A

The writing itself may be read into evidence, so long as there is sufficient foundation for the Recorded Recollection:

  1. Witness at one time had personal knowledge of the facts of the writing
  2. Writing was made by the witness/under her direction/adopted by witness
  3. Writing was timely made when fresh in memory.
  4. Writing is accurate.
  5. Witness has insufficient recollection to testify fully and accurately.
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10
Q

What rights does an adverse party have when a witness needs the Recorded Recollection?

A
  1. Entitled to have the writing produced at trial
  2. May cross examine witness thereon
  3. Introduce portions relating to the witness’s testimony into evidence.
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11
Q

When is an lay witness opinion admissible?

A

When it is:

  1. Rationally based on the witness’s perception
  2. Helpful to a clear understanding of his testimony or helpful in the determination of a fact in issue
  3. Not based on scientific, technical, or other specialized knowledge
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12
Q

What are some examples of situations where opinions of lay witnesses are admissible?

A

When they are testifying about:

  1. The general appearance or condition of a person
  2. the state of emotion of a person
  3. matters involving sense recognition
  4. voice or handwriting
  5. speed of a moving object
  6. value of his own services
  7. rational or irrational nature of another’s conduct
  8. intoxication of another.
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13
Q

What must be laid out in order for an expert witness to testify?

A

“Hey Queen Cersei’s Fucking Robert Paratheon”

  1. Subject matter is one where specialized knowledge would be HELPFUL to trier of fact.
  2. Witness is QUALIFIED
  3. Expert is reasonable CERTAIN of his opinion.
  4. Opinion is based on proper FACTUAL basis.
  5. Facts based on RELIABLE PRINCIPLES of the given specialized field.
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14
Q

When can an authoritative text be used for substantive evidence?

A
  1. When an expert is on the stand when the excerpt is read AND
  2. Relevant portion is read into evidence, but not received as an exhibit
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15
Q

Who may impeach a witness?

A

Any party, including the one that called witness to testify

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16
Q

What five main methods can you use for impeachment?

A
  1. Prior inconsistent Statements
  2. Bias or Interest
  3. Conviction of Crime (involving dishonesty)
  4. Specific Acts of Misconduct (only if act is probative of truthfulness)
  5. Opinion/Reputation
17
Q

Which forms of impeachment do NOT allow extrinsic evidence?

A
  1. Specific Acts of Misconduct-can only be elicited on cross-examination of the witness
  2. Opinion/Reputation-Must call other witnesses
18
Q

How may an impeached witness be rehabilitated?

A
  1. By explanation on redirect
  2. By further proof of good reputation for truthfulness
  3. By evidence of prior consistent statements.
19
Q

Prosecutor calls upon a witness to implicate Defendant in the crime. However, witness testifies and exonerates the defendant. May prosecutor use a prior inconsistent statement to impeach? Does that statement come in for its truth?

A
  1. Yes, can use extrinsic evidence to impeach, must lay foundation.
  2. No, statement can’t come in for its truth, that essentially creates a “trial within a trial” for witness.
20
Q

Defense counsel calls upon the accused’s cousin, asking where he was on the night of the 21st. Witness replies: “Why don’t you ask your mom?” What, if any, is the appropriate objection? If sustained, what may defense counsel now do on direct examination?

A

Hostile witness. Defense counsel may now ask leading questions on direct.

21
Q

A witness testifies against you and for your opponent. May you show that this witness received $50,000 in settlement from your opponent?

A

Yes, for impeachment purposes to show bias.

22
Q

What types of prior convictions can you use to impeach a witness?

A
  1. ANY crime involving dishonesty
  2. A felony not involving dishonestly is admissible at the court’s discretion
  3. Convictions must have been within the last ten years of release date.
23
Q

What are the elements of a recorded recollection?

A
  1. Witness at one time had personal knowledge of the facts of the writing
  2. Writing was made by the witness/under her direction/adopted by witness
  3. Writing was timely made when fresh in memory.
  4. Writing is accurate.
  5. Witness has insufficient recollection to testify fully and accurately.

Evidence 101 (7 decks)

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