Witness Rules Flashcards
600s
Everyone can testify except… (FRE 601)
Those who are “demented”/”mentally infirm” (and struggling)
Very young children
Competence requirements for witnesses (FRE 601)
Ability to communicate
First-hand observation
Memory
Sense of obligation to tell the truth (oath)
What kind of knowledge is required to testify to the judge/jury? (FRE 602)
Personal knowledge (gained by any sense)
Does NOT apply to expert witnesses
Objection to a witness without personal knowledge of material (FRE 602)
“Speculation” or “conjecture”
What happens to unsworn witness testimony? (FRE 603)
It can be struck from the record
Can interpreters be qualified ad hoc? What else do they require? (FRE 604)
Yes. They also require an oath to make a true translation
May judges serve as witnesses in cases they preside over? (FRE 605)
No.
May jurors testify in the trial on which they are serving? (FRE 606(a))
No. The opposing party can object in a sidebar
May jurors testify about their deliberations? (FRE 606(b))
No.
Exceptions:
1. Extraneous prejudicial information received by the jury
2. Outside influence that pressured a juror
3. A mistake in the paperwork
Can jurors discuss detection of racial animus among other jurors with partisan parties? (FRE 606(b))
Yes, but it is better if disclosed prior to the close of trial. However, this should have been detected in Voir Dire.
1. Non-jurors can say something
2. This is exempt from 606(b) restrictions due to the 6th amend. right to an impartial jury
Who may impeach a witness? (FRE 607)
Opponents of witnesses may want to impeach witnesses, but any side may impeach
What are the 7 common methods of impeachment?
- Bias
- Defects in perception or memory
- Showing bad character for truthfulness
- Prior unconvicted acts indicating dishonesty
- Opinion Evidence
- Prior inconsistent statements
- Prior convictions
How does one show a witness has a bias (sympathy/antipathy/ulterior motive)? (FRE 611(b))
Show INTRINSIC evidence through cross examination
Show EXTRINSIC evidence of conduct
Show EXTRINSIC evidence of statements
How admissible is bias for witness testimony?
Bias is ALWAYS material. It is admissible if its probative material is not outweighed by its prejudicial effect.
How does one show defects in a witness’ perception or memory?
Sensory defects:
1. problems with sight, hearing, etc
2. circumstances of witness (intoxication, etc)
3. environmental circumstances (smoky, dark, etc)
Recall problems:
4. Trauma, PTSD, injuries, drugs, intoxication, etc
This is ALWAYS relevant if the testimony depends on the validity of the perception/memory)
EXTRINSIC or INTRINSIC evidence can be used
How does one show bad character for truthfulness?
Show permanent defects in personality.
How does one show prior unconvicted acts that indicate dishonesty?
- Confront the witness’ own bad acts
- Bad/good acts of the people of characteristics they discussed
- Respect the 5th amendment against self-incrimination
THIS IS ONLY FOUND THROUGH SELF-ADMISSION ON THE STAND (not common)
When can you use opinion evidence for the purposes of witness impeachment? (FRE 608(a))
For supporting witness’ truthfulness: AFTER the witness’ credibility has been attacked by the opponent
For attacking witness’ truthfulness: during cross examination
EXTRINSIC evidence required
What types of statements can be used to impeach a witness using prior inconsistent statements?
court-like settings (formal, with perjury punishments) are ALWAYS admisible
INTRINSIC or EXTRINSIC
Unuseable:
1. Involuntary statements
2. Pre-Miranda statements
3. Statements during plea negotiations
4. Post-Miranda silence
When can you impeach your own witness?
When the witness has surprised you and damaged you in their testimony.
When can prior convictions be used to impeach a witness? (FRE 609)
Any felony
Any misdemeanor that involves deceit crimes
Witness must have been convicted/released within 10 years
NO juvenile convictions
EXTRINSIC evidence is okay
Can you impeach a witness using their religious beliefs or opinions?
NO.
Can you impeach a witness based upon their common associations?
Yes. You cannot impeach upon substantive beliefs, however.
How can you rehabilitate a witness?
Allow the witness to explain
Show good character for truthfulness
Show prior consistent statements
How does one use consistent statements for witness rehabilitation?
AFTER cross has implied that the witness has a motive to fabricate testimony:
1. Consistent statements do not need to be under oath
2. Consistent statements can be from a different witness
3. Third party testimony is allowed ONLY if the motive to lie would not have formed yet
What kinds of questions may you ask witnesses during direct testimony? What about cross? (FRE 611)
Direct:
1. Generally: open ended questions
2. To use leading questions on direct:
- Covering background info
- Developing testimony (child witnesses)
- “Hostile” witness
What is Present Recollection Refreshed? (FRE 612)
- Establish witness is having trouple recalling a particular matter
- Ask the witness whether it would be helpful to see a specific document
- show the document/item to the opposing counsel
- ask the court permission to approach the witness
- show witness the document/item
- through a brief questioning, establish the document/item has refreshed the witness’ memory
- take away the document/item from the witness
- proceed with the examination of the witness now that memory has been excepted
The item does NOT need to be the evidence itself
When examining a witness, does the party need to show the witness anything? (FRE 613(a))
No. But it must be shown to opposing counsel.
For extrinsic evidence of prior inconsistent statements, is the witness allowed the chance to deny/explain the inconsistency? (FRE 613(b))
Yes. However, if the witness is a party opponent, they do not need to be given the chance to explain.
May judges call witnesses? If so, who may give direct, and who may cross? (FRE 614)
Yes. The judge gives direct, and both parties can cross.
What is witness sequestration? (FRE 615)
removal of a witness from the courtroom or other areas where their testimony could be influenced by other witnesses
Sequestration is NOT authorized for: (FRE 615)
- A party (natural person)
- Employee/oficer of a party that is not a natural person designated as a reprepresentitive by its attorney
- person whose presence is shown by a party to be essential to the representation of the party’s cause
- A person authorized by statute to stay through the trial
