Witnesses Flashcards
Two basic requirements to admit witness
(1) personal knowledge
(2) oath or affirmation
Leading questions
Generally allowed on cross-examination but not allowed on direct examination unless: Preliminary/introductory Youthful/forgetful witness Hostile witness Adverse party
Proper subject matter for cross-examination
Matters within scope of direct examination
Matters that test the witness’s credibility
Refreshing recollection
Witness may not read from prepared memorandum unless witness’s memory fails hir.
Safeguards against abuse of refreshing recollection
If witness’s recollection is refreshed during testimony, adversary has right to inspect memory refresher; use it on cross-examination, or introduce it into evidence. If refreshing happens before the witness testifies, the adversary is not entitled to these options but the judge has the discretion to allow it.
Foundation for Admissibility of Contents of Document
(a) fails to jog memory
(b) witness had personal knowledge
(c) document was either made by witness or adopted by witness
(d) making or adoption occurred when event was fresh in witness’s memory
(e) witness can vouch for accuracy
When is the opinion of a lay witness admissible?
If it is rationally based on the witness’s perception, helpful, and not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony.
What is proper subject matter for an expert witness to testify on?
Scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact.
What must be the basis of an expert’s opinion?
A reasonable degree of probability or reasonable certainty, and
(1) personal knowledge
(2) other evidence in the trial record
(3) facts outside the record if of a type reasonably relied on by experts in the particular field.
May relevant portions of a treatise, periodical, or pamphlet be read into evidence as substantive evidence if established as reliable authority?
Yes.
May the learned treatise be read into evidence to impeach and contradict an opponent’s expert?
Yes.
May the learned treatise be introduced as an exhibit?
No.
In criminal cases, is expert testimony objectionable due to it addressing an “ultimate issue” if the expert seeks to give a direct opinion that the defendant did or did not have the relevant mental state?
Yes.
