Witnesses

Question 1

Competency Generally

Answer 1

a) Generally, everyone is competent to testify (be a witness)
b) Personal Knowledge
i) A lay witness must have personal knowledge, but an expert witness does not

Question 2

Competency of Judge as Witness

Answer 2

i) Rule: The presiding judge may not testify in a trial (the objection is automatic and need not be made)

Question 3

Competency of Juror as Witness

Answer 3

d) Competency of Juror as Witness
i) Rule: A juror may not testify as a witness before the jury of which they are a member
(1) Exception—A juror may testify as to:
(a) extraneous prejudicial information improperly brought to the juror’s attention;
(b) that a juror made an unauthorized visit to the scene, or conducted out-of-court experiments regarding evidence presented at trial; or
(c) That a juror accepted a bribe or was threatened with harm

Question 4

Impeachment: Collateral Matter Rule

Answer 4

i) A collateral matter is evidence solely affecting the credibility of a witness. While questioning on collateral matter, the party cross-examining the witness is bound by the witness’s answer to matters solely affecting credibility
(1) Extrinsic evidence on collateral matters is generally inadmissible to impeach

Question 5

Impeachment: Methods

Interest, Motive, or bias

Answer 5

(1) Rule: Bias or prejudice is always material; the collateral-matter rule does not apply, so this can be used to impeach

Question 6

Impeachment: Methods

PINS

Answer 6

Prior Inconsistent Statement (PINS)

“inconsistent” prior statement must be inconsistent with the in-court testimony

inconsistency can be found by:

• express contradiction,
• omission, or
• feigned lack of memory

Question 7

Impeachment: Methods (list)

Answer 7

• Interest, Motive, or bias
• PINS
• Sensory Defects (incapacity to observe, recall, or relate)
• Prior Conviction of a crime
• Character
• Contradiction

Question 8

Impeachment: Methods

Sensory Defects

Answer 8

(1) Rule: Inability to observe, communicate, or remember is always relevant, never collateral; however, it is not allowed as to whether the witness is addicted to drugs or alcohol (unless immediately connected to the witness’s credibility)

Question 9

Impeachment: Methods

Prior Conviction of a Crime 2 Categories = (1) FELONIES

Answer 9

(a) Felonies (“felonies” = crimes punishable by death or imprisonment of more than one year)
(i) Rule: If used to impeach a witness other than D, a felony conviction is subject to the Rule 403 balancing test
(ii) Rule: If used to impeach D, a felony conviction will be admitted if the prosecution shows the probative value outweighs the prejudicial effect

Question 10

Impeachment: Methods

Prior Conviction of a Crime 2 Categories = (2) Crimes involving dishonesty or false statement (includes both felonies and misdemeanors

Answer 10

(b) Crimes involving dishonesty or false statement (includes both felonies and misdemeanors)
(i) Rule: If 10 years old or less, admission to impeach is mandatory
(ii) Examples (admissible): perjury, forgery, theft specifically involving a lie (e.g., larceny by trick, false pretenses, or embezzlement), criminal fraud, and all other crimes involving some element of deceit, untruthfulness, or falsification
(iii) Examples (inadmissible): assault, battery, DUI, possession of drugs, theft in general

Question 11

Impeachment: Methods

Prior Conviction of a Crime

10-year limit

Answer 11

(2) 10-year limit
(a) Rule: Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect

Question 12

Impeachment: Methods

Prior Conviction of a Crime

Answer 12

(3) Arrest records, indictments, and other charges are inadmissible
(4) Guilty pleas and suppressed evidence are admissible to impeach

Question 13

Impeachment: Methods

Character & Contradiction

Answer 13

(1) Reputation or opinion; prior bad acts; felony convictions; specific convictions of crimes involving dishonesty

Contradiction

Question 14

Impeachment: Evidence of Character and Conduct of Witness (1)

Answer 14

i) Rule: A witness’s character for untruthfulness is always material and may be attacked by reputation or opinion evidence
(1) A witness’s character for truthfulness can be shown by reputation or opinion evidence only if the witness’s credibility for truthfulness has first been attacked
(2) Cross-examination about specific acts that reflect on his truthfulness, such as perjury or fraud, is acceptable

Question 15

Impeachment: Evidence of Character and Conduct of Witness (2)

Answer 15

ii) Rule (bad-act impeachment): Specific instances of the conduct of any testifying witness that are probative of the witness’s truthfulness are admissible to attack or support the witness’s credibility
(1) Permitted Methods:
(a) a question;
(b) on cross-examination;
(i) inquiring into the witness’s own prior bad acts bearing on truthfulness (or dishonesty)
(2) Limitations
(a) Questions must be probative of truthfulness
(b) Questions must be asked in good faith
(c) The bad acts cannot be too remote in time (consider Rule 403)
(d) Only questions of fact are allowed; not rumors

Question 16

Examination of Witnesses:

Leading Questions

Answer 16

i) Generally, not permitted on direct examination
ii) Circumstances in which leading questions may be used on direct examination:
(1) Hostile witness; adverse witness; child witness; preliminary background information; to refresh recollection

Question 17

Examination of Witnesses:

Writing used to Refresh Memory

Answer 17

i) On direct, the examiner may refresh the witness’s memory
ii) Key Points
(1) Any writing, photograph, further questioning, or other form of evidence will suffice
(2) Authentication of the writing is not required
(3) The proponent may not introduce the writing into evidence (don’t confuse with past recollection recorded)

iii) Rights of the opponent:
(1) May inspect the evidence and use it on cross-examination
(2) Show writing to the jury for comparison with witness’s testimony
(3) Introduce relevant portions into evidence (put testimony in context; doctrine of completeness)

Question 18

Big picture note!

Answer 18

if a writing is used to refresh recollection, neither the hearsay rule nor the best evidence rule apply because the writing is not offered or admitted

Question 19

Prior Statement of Witness

Answer 19

i) Under this rule (FRE 613), a prior inconsistent statement (PINS) is not “sworn” and is admissible
only to impeach
(1) Differs from FRE 801, where PINS comes in for its truth
ii) The statement may be oral or written
iii) Foundation Requirement—Extrinsic evidence of a PINS by a witness may be admissible if:
(1) the witness is afforded an opportunity to explain or deny the evidence at some point during the trial, and
(2) opposing counsel is afforded an opportunity to examine the sponsoring witness, or
(3) if justice so requires
iv) If the witness denies making the PINS, extrinsic evidence is generally admissible to impeach
v) If the witness admits making the PINS, the witness has the right to explain his answer

Question 20

d) Calling and Interrogation of Witness by Court

Answer 20

i) The court on its own motion may call witnesses, and all parties may examine any witness called by the court
ii) The court may interrogate/question any witness called by a party