Witness Issues

Question 1

Competency of Witnesses - 2 Requirements

Answer 1

1. Personal Knowledge

2. Oath or affirmation

Question 2

Dead Man’s Statute

Answer 2

Generally, witness is not ordinarily incompetent merely because she has an interest (direct legal stake) in the outcome of the litigation.

BUT some states have “dead man statutes” that provide in a CIVIL action, an interested witness is incompetent to testify in support of her own interest against the estate concerning communications or transaction between the interested witness and the decedent.

Question 3

Leading Questions

Answer 3

Generally ARE allowed on cross; generally NOT allowed on direct.

BUT 4 exceptions where leading questions are allowed on direct:

1. preliminary/introductory matters
2. Youthful or forgetful witness
3. hostile witness
4. adverse party/someone under control of adverse party

Question 4

Refreshing Recollection

Answer 4

Generally, a witness may not read from prepared script, and must testify on basis of current recollection.

HOWEVER, if witness’s memory fails, he may be shown a memo or other tangible item to jog his memory.

The writing itself is NOT part of evidence, and after looking at it witness must then testify from present recollection.

ADVERSARY has the right to:

1. inspect the memory-refresher
2. use it on cross examination
3. introduce it into evidence

Question 5

Past Recollection Recorded (a HEARSAY exception)

Answer 5

May read contents of writing into evidence if meet foundation:

1. showing the writing to witness fails to jog his memory
2. the witness HAD personal knowledge at a former time
3. writing was either MADE or adopted by the witness
4. making/adoption occurred while the event was fresh in witness’s memory
5. witness can vouch for accuracy of writing when made

proponent STILL CANNOT introduce the writing itself into evidence. But OPPONENT may.

Question 6

When is Lay OPINION testimony admissible?

Answer 6

1. the opinion is rationally based on the witness’s perception and
2. the opinion is HELPFUL to the jury

Question 7

Expert Witness Opinion Testimony - Qualification?

Answer 7

based on education and/or experience

Question 8

Expert Witness Opinion Testimony - Proper Subject Matter?

Answer 8

Specialized knowledge that will be HELPFUL to the jury in deciding a fact.

Question 9

Expert Witness Testimony - permissible Bases of Opinion?

Answer 9

must be based on “reasonable degree of PROBABILITY or REASONABLE CERTAINTY.”

May base opinion on any of 3 sources:

1. Personal knowledge (e.g. treating doctor)
2. other evidence admitted at trial made known to the expert by HYPOTHETICAL questions
3. Facts OUTSIDE the record IF they are of the type reasonably relied on by experts in the particular field in forming opinions. (but CONTENTS of such out of court material should not be disclosed unless judge decides it would help them evaluate expert’s opinion)

Question 10

Expert Witness Testimony - Relevance/Level of Reliability Required?

Answer 10

must be relevant (duh) and SUFFICIENTLY RELIABLE (1. reliable methods and principles AND 2. reliably applies those methods/principles to the facts)

4 reliability factors

1. Testing of principles and methods
2. Rate of error of the principles and methods used
3. Acceptance of the methods by other experts in the same discipline.
4. Peer review or publication of the methods/principles

Question 11

Expert Witness - use of learned treatise

Answer 11

On DIRECT of own expert, may read into evidence relevant portions of treatise, etc. as SUBSTANTIVE EVIDENCE, if it is established as a reliable authority.

On CROSS - may read treatise into evidence to impeach or contradict the opponent’s expert. Again, as substantive evidence.

May NOT introduce treatise as exhibit.

Question 12

Expert Witness Testimony - Ultimate Issue?

Answer 12

Opinion testimony (lay or expert) is NOT objectionable merely because it embraces an “ultimate issue.” BUT will be considered NOT HELPFUL, and therefore not admissible if it’s mere regurgitation of legal standard. e.g. “In my opinion D’s conduct showed a reckless disregard for the safety of others.”

BUT in criminal cases expert may not give direct opinion that the defendant did or did not have relevant MENTAL state.
e.g. can’t say “D’s insanity prevented him from understanding wrongfulness of act.” Can say “D has mental illness. Person with this mental illness cannot understand fact from fantasy.”

Question 13

Cross Examination - proper subject matter?

Answer 13

A party has a RIGHT to cross examine any opposing witness who testifies at the trial.

Proper subject matter:

1. Matters WITHIN THE SCOPE of direct examination AND
2. Matters that test witness’s credibility.

Question 14

Credibility - Bolstering One’s Own Witness

Answer 14

Bolstering witness’s credibility is not allowed until after his credibility has been attacked (aka rehabilitation)

EXCEPT:
Prior Identification of a person - if a witness who previously identified a person testifies at trial and is subject to cross examination, Witness may not only presently identify person but also add that they previously identified the same person.

Question 15

Impeachment Methods (7)

Answer 15

Prior Inconsistent statements
Bias, Interest or Motive to Misrepresent
Sensory Deficiencies
Bad Reputation/Opinion about character for truthfulness
Criminal Convictions
Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness
Contradiction

Question 16

Prior Inconsistent Statements

Answer 16

Any witness may be impeached by showing that on some prior occasion, she made a material statement (oral or written) that is inconsistent with her testimony.

But MAY ONLY BE USED AS SUBSTANTIVE EVIDENCE IF: prior statement was made 1) orally under oath, 2) as part of a formal judicial procedure (hearing, trial, deposition, grand jury) AND 3) at some point witness has opportunity to explain/deny prior inconsistent statement (unless witness is the opposing party).

Question 17

Extrinsic Evidence and Impeachment

Answer 17

Extrinsic Evidence may be used to prove impeaching fact in all cases EXCEPT 1) prior bad acts and 2) contradicting COLLATERAL facts.

Need not ask witness about impeaching fact before using extrinsic evidence EXCEPT where impeaching with BIAS.

Question 18

Impeachment by Bias

Answer 18

A witness may be impeached by any fact that would give a witness a reason to show favoritism or hostility toward a party.

MUST confront witness with alleged bias while on the stand.

MAY be proven through extrinsic evidence.

Question 19

Sensory Deficiencies Impeachment

Answer 19

Anything that could affect witness’s perception or memory - confrontation not required and extrinsic evidence IS allowed.

Question 20

Impeachment through Reputation or Opinion testimony about Character for Truthfulness

Answer 20

Confrontation NOT required.
Generally must use extrinsic evidence - character witness to testify about opinion or reputation.

Opinion character witness must show a period of personal acquaintance.
Reputation character witness must be acquainted with the target witness and the community where target witness lives, works, or goes to school.

Question 21

Use of Criminal Convictions to impeach (FRE 609)

Answer 21

May use:

1) conviction of any crime where prosecution had to prove false statement as an element of the crime.
2) Felony conviction IF its probative value outweighs its prejudicial effect (for criminal d) or its probative value is outweighed by danger of unfair prejudice (anyone else).

Generally may ONLY USE if conviction or release from prison, whichever is later is within 10 years of trial. If MORE than 10 years have elapsed, may not use for impeachment unless the probative value is substantial AND give opponent notice to contest its use.

MAY use extrinsic evidence; need not confront before

Question 22

Prior (non-conviction) Bad Acts for impeachment

Answer 22

may be used to impeachment if they reflect adversely on withness’s character for truthfulness.

ONLY Procedure allowed: ASK witness about prior bad act on cross exam.
NO EXTRINSIC EVIDENCE permitted.
Must have GOOD FAITH basis for inquiry.
Court has discretion to preclude.
Limited to untruthful act itself, NOT the consequences.

Question 23

Impeachment by Contradiction

Answer 23

Cross Examiner may confront witness to obtain admission that she lied or made a mistake about a fact. May ONLY submit extrinsic evidence of MATERAL fact, NOT for COLLATERAL fact.

Question 24

Rehabilitation

Answer 24

If impeachment of a witness clearly suggested he was lying (as opposed to merely being mistaken), may introduce reputation or opinion evidence as to witness’s good Character for Truthfulness.

If cross-exam suggests witness’s trial testimony is a recent fabrication or product of improper influence, a PRIOR CONSISTENT STATEMENT is admissible IF statement made BEFORE the motive to fabricate arose.

(hrsy exclusion so admissible as SUBSTANTIVE evidence also)