Witness Rules

Question 1

Everyone can testify except… (FRE 601)

Answer 1

Those who are “demented”/”mentally infirm” (and struggling)
Very young children

Question 2

Competence requirements for witnesses (FRE 601)

Answer 2

Ability to communicate
First-hand observation
Memory
Sense of obligation to tell the truth (oath)

Question 3

What kind of knowledge is required to testify to the judge/jury? (FRE 602)

Answer 3

Personal knowledge (gained by any sense)
Does NOT apply to expert witnesses

Question 4

Objection to a witness without personal knowledge of material (FRE 602)

Answer 4

“Speculation” or “conjecture”

Question 5

What happens to unsworn witness testimony? (FRE 603)

Answer 5

It can be struck from the record

Question 6

Can interpreters be qualified ad hoc? What else do they require? (FRE 604)

Answer 6

Yes. They also require an oath to make a true translation

Question 7

May judges serve as witnesses in cases they preside over? (FRE 605)

Answer 7

No.

Question 8

May jurors testify in the trial on which they are serving? (FRE 606(a))

Answer 8

No. The opposing party can object in a sidebar

Question 9

May jurors testify about their deliberations? (FRE 606(b))

Answer 9

No.
Exceptions:
1. Extraneous prejudicial information received by the jury
2. Outside influence that pressured a juror
3. A mistake in the paperwork

Question 10

Can jurors discuss detection of racial animus among other jurors with partisan parties? (FRE 606(b))

Answer 10

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

Question 11

Who may impeach a witness? (FRE 607)

Answer 11

Opponents of witnesses may want to impeach witnesses, but any side may impeach

Question 12

What are the 7 common methods of impeachment?

Answer 12

1. Bias
2. Defects in perception or memory
3. Showing bad character for truthfulness
4. Prior unconvicted acts indicating dishonesty
5. Opinion Evidence
6. Prior inconsistent statements
7. Prior convictions

Question 13

How does one show a witness has a bias (sympathy/antipathy/ulterior motive)? (FRE 611(b))

Answer 13

Show INTRINSIC evidence through cross examination
Show EXTRINSIC evidence of conduct
Show EXTRINSIC evidence of statements

Question 14

How admissible is bias for witness testimony?

Answer 14

Bias is ALWAYS material. It is admissible if its probative material is not outweighed by its prejudicial effect.

Question 15

How does one show defects in a witness’ perception or memory?

Answer 15

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

Question 16

How does one show bad character for truthfulness?

Answer 16

Show permanent defects in personality.

Question 17

How does one show prior unconvicted acts that indicate dishonesty?

Answer 17

1. Confront the witness’ own bad acts
2. Bad/good acts of the people of characteristics they discussed
3. Respect the 5th amendment against self-incrimination
   THIS IS ONLY FOUND THROUGH SELF-ADMISSION ON THE STAND (not common)

Question 18

When can you use opinion evidence for the purposes of witness impeachment? (FRE 608(a))

Answer 18

For supporting witness’ truthfulness: AFTER the witness’ credibility has been attacked by the opponent
For attacking witness’ truthfulness: during cross examination
EXTRINSIC evidence required

Question 19

What types of statements can be used to impeach a witness using prior inconsistent statements?

Answer 19

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

Question 20

When can you impeach your own witness?

Answer 20

When the witness has surprised you and damaged you in their testimony.

Question 21

When can prior convictions be used to impeach a witness? (FRE 609)

Answer 21

Any felony
Any misdemeanor that involves deceit crimes
Witness must have been convicted/released within 10 years
NO juvenile convictions
EXTRINSIC evidence is okay

Question 22

Can you impeach a witness using their religious beliefs or opinions?

Answer 22

NO.

Question 23

Can you impeach a witness based upon their common associations?

Answer 23

Yes. You cannot impeach upon substantive beliefs, however.

Question 24

How can you rehabilitate a witness?

Answer 24

Allow the witness to explain
Show good character for truthfulness
Show prior consistent statements

Question 25

How does one use consistent statements for witness rehabilitation?

Answer 25

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

Question 26

What kinds of questions may you ask witnesses during direct testimony? What about cross? (FRE 611)

Answer 26

Direct:
1. Generally: open ended questions
2. To use leading questions on direct:
- Covering background info
- Developing testimony (child witnesses)
- “Hostile” witness

Question 27

What is Present Recollection Refreshed? (FRE 612)

Answer 27

1. Establish witness is having trouple recalling a particular matter
2. Ask the witness whether it would be helpful to see a specific document
3. show the document/item to the opposing counsel
4. ask the court permission to approach the witness
5. show witness the document/item
6. through a brief questioning, establish the document/item has refreshed the witness’ memory
7. take away the document/item from the witness
8. proceed with the examination of the witness now that memory has been excepted
   The item does NOT need to be the evidence itself

Question 28

When examining a witness, does the party need to show the witness anything? (FRE 613(a))

Answer 28

No. But it must be shown to opposing counsel.

Question 29

For extrinsic evidence of prior inconsistent statements, is the witness allowed the chance to deny/explain the inconsistency? (FRE 613(b))

Answer 29

Yes. However, if the witness is a party opponent, they do not need to be given the chance to explain.

Question 30

May judges call witnesses? If so, who may give direct, and who may cross? (FRE 614)

Answer 30

Yes. The judge gives direct, and both parties can cross.

Question 31

What is witness sequestration? (FRE 615)

Answer 31

removal of a witness from the courtroom or other areas where their testimony could be influenced by other witnesses

Question 32

Sequestration is NOT authorized for: (FRE 615)

Answer 32

1. A party (natural person)
2. Employee/oficer of a party that is not a natural person designated as a reprepresentitive by its attorney
3. person whose presence is shown by a party to be essential to the representation of the party’s cause
4. A person authorized by statute to stay through the trial