Witness Rules Flashcards
Which rules govern who can testify?
FRE 601-606 - simple rules about who may testify
FRE - Harder rules about impeachment and rehabilitation
FRE 611-615 - Simple rules about manner of questioning (and sequestering) witnesses
What are the 4 aspects of competence?
- Perception
- Memory
- Veracity
- Communication
What is the rule on personal knowledge under FRE 602?
FRE 602 - Personal Knowledge
“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.”
Provides that: All witnesses must have first-hand, personal knowledge garnered through any of the senses.
But, Experts don’t need first-hand, personal knowledge
What is extrinsic evidence?
Any evidence other than admissions on cross-exam.
Under FRE 601, who can testify?
“Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.”
*everyone can testify except as provided by other FRE.
*State law determines who’s competent if state law controls rule of decision (e.g., when state law supplies elements for tort claim in diversity suit).
What is the definition of impeachment?
Attacking the credibility of witness testimony, either concerning the subject of the testimony or the general believability of the witness
What is the definition of rehabilitation?
Repairing the credibility of the witness whose testimony has been impeached.
Who may impeach under FRE 607?
Any party, including the party that called the witness, may attack the witness’s credibility.
What is Intrinsic Evidence?
Admissions on Cross-Exam
What are the 5 common methods of Impeachment in Federal Court?
- Showing Bias, Sympathy, or some Ulterior Motive.
- Showing Defects in Perception or Memory.
- Showing Bad Character for Truthfulness.
3a. Prior Unconvicted Acts, including Dishonesty
3b. Prior Convictions
3c. Reputation/Opinion Evidence. - Demonstrating that the witness made prior inconsistent statements.
- Contradicting the testimony with Counterproof.
What are the 3 ways to Show Bias?
- on Cross-Exam (intrinsic)
- Extrinsic evidence of conduct (extrinsic)
- Extrinsic evidence of statements (extrinsic)
Note: FRE 608(b) prohibits use of extrinsic evidence to show bad character for truthfulness; but showing bias is an alternative avenue of admissibility for evidence that would be excluded under 608(b).
When is Bias relevant?
Bias is always relevant and never a collateral issue.
When impeaching a witness by showing defect in perception, what type of evidence may be used? Intrinsic? Extrinsic?
Both intrinsic and extrinsic evidence may be used to show a defect in perception.
What are the 3 ways to impeach a witness by showing bad character for truthfulness?
- Showing prior bad acts - unconvicted - bearing on truthfulness.
- Offering Prior Convictions
- Offering Reputation or opinion evidence showing that the witness has bad character for truthfulness
When are defects in perception or memory relevant?
They are always relevant provided that the validity of the testimony depends upon perception or memory.
What is the rule for impeaching a witness by showing bad character for truthfulness by showing prior bad acts (unconvicted) bearing on truthfulness?
- On cross (and only on cross), impeaching party can ask questions about a witness’s prior act that bears on truthfulnessA. Like an act involving lies or deception
B. Includes criminal charges that aren’t convicted yet
C. Can still be prohibited if more prejudicial than probative. - EvidenceA. Only intrinsic evidence allowed
i. Difficult because people don’t admit to it and you have to accept what the witness says – can’t use extrinsic evidence
What is the rule for impeaching a witness by showing bad character for truthfulness by offering prior convictions?
- Qualifying convictionsa. Offense must be punishable by death or a term of imprisonment exceeding one year (felony) ORb. Offense not exceeding one year that involved dishonestyc. No contest pleas and convictions presently on appeal qualify
- Balancing test – NOTE: balancing test needed for dishonest crimesa. Only applicable if crime does not involve dishonestyb. If prior conviction does not involve dishonest, apply 403 balancing test
i. Does prejudicial effect substantially outweigh probative value?
c. SEE 10 year limit - Evidence - Can be extrinsic
What are the “special rules” for bad character for truthfulness and offering prior convictions?
a. Pardons
i. Governor in state system, president for federal pardons
ii. Pardons based on a finding of innocence: wipe the record clean
iii. Pardon based on rehabilitation: only good as long as the person stays rehabilitated
iv. If convicted again for impeachable offense, then TWO offenses are impeachable - the pardoned and the new conviction
b. Juveniles
i. Are not admissible to impeach unless the following circumstances are met
ii. Admission must be necessary in the interest in justice
c. Appeals
i. Convictions under APPEAL not given special treatment
ii. Successful appeals not admissible to impeach
What is the rule for impeaching a witness by showing bad character for truthfulness by offering reputation or opinion evidence showing witness’s bad character for truthfulness?
608a
608a
- A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion
a. Truthful character evidence - Only admissible after credibility has been attacked
- Evidence - Extrinsic
What is the 403 balancing test?
RULE 403 – Balancing test
1. Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
a. Unfair prejudice
i. Undue tendency to suggest decision on an improper basis, often an emotional one
ii. Eg: close up photos of mutilated corpse / testimony of a criminal defendant’s racist language that is unrelated to the charged conduct
iii. Must be highly inflammatory (all evidence is somewhat prejudicial)
b. Confusing the issues
c. Misleading the jury
d. Undue delay
e. Wasting time
i. Like duplicating evidence already admitted
f. Needlessly presenting cumulative evidence
- Tie between probative value and prejudice will be resolved in favor of the proponent
iv. 402 and 403 can require exclusion of evidence that would pass other FRE ** always ask at the outset before doing a hearsay analysis **
What are the rules surrounding impeaching a witness by demonstrating that the witness has made prior inconsistent statements?
Basic Idea: Were you lying then or are you lying now?
Evidence: Extrinsic or Intrinsic
- In-court statements - admissible under FRE 801(d)(1) if given under oath in qualifying proceeding;
- Prior hearing
- Prior grand jury session
- Prior trial
- Deposition
ii. these can be used substantively as well as for impeachment - Out-of-court inconsistent statements - can only be used for impeachment (see FRE 801(c)).
- Cannot impeach with prior inconsistent statement on collateral matters
- Procedurally
i. FRE 613(a) requires opposing counsel must be given any written copy of a statement
ii. FRE 613 (b) requires witness be given opportunity to explain inconsistency
iii. Certain prior statements can’t be used
1. Involuntary statements
2. Statements made in plea negotiations
3. Post-miranda silence
a. Harris
i. Unmirandized statements can’t be used in the gov’s case in chief but can be used to impeach where the defendant takes the stand and says something different
What are the rules for impeaching a witness by contradicting the testimony with counterproof?
A. Means telling a different story through your own witness.
B. Dual Relevancy Requirement
i. Testimony must be relevant in its own right - not just to contradict the other side.
1. Thus, contradiction on collateral matters may not be admissible?
What is the authority for Impeaching a witness by showing bias, sympathy, or ulterior motive? Extrinsic or intrinsic evidence allowed?
Authority: FRE 401, 611(b), Abel case law
Extrinsic evidence is allowed
What is the authority for impeaching a witness by showing defects in perception or memory? Is extrinsic evidence allowed?
FRE 401, 602
Extrinsic evidence is allowed
What is the authority for impeaching a witness by showing prior bad acts (unconvicted) bearing on truthfulness? Is extrinsic evidence allowed?
Authority: 608(b)
Extrinsic Evidence is NOT allowed
What is the authority for impeaching a witness by offering prior criminal convictions? Is Extrinsic evidence allowed?
Authority: FRE 609
Extrinsic evidence is allowed
What is the authority for impeaching a witness by offering opinion or reputation evidence bearing on truthfulness? Is extrinsic evidence allowed?
Authority: FRE 608(a)
Extrinsic evidence is allowed
What is the authority for impeaching a witness by showing prior inconsistent statements? Is extrinsic evidence allowed?
Authority: FRE 613, 801(c), 801(d)(1)
Extrinsic evidence is allowed
What is the authority for impeaching a witness by contradicting the witness? Is extrinsic evidence allowed?
FRE 401
Extrinsic evidence is allowed
What rules do FRE 401, 611(b) and Abel provide regarding impeachment by showing bias, sympathy, or ulterior motive?
