Witnesses Flashcards
What is the rule for lay witnesses?
Observations are allowed.
Opinions are admissible in regard to common sense impressions.
No specialized knowledge.
When can prior acts be admitted?
MIMIC
Motive Intent Absence of Mistake Modus Operandi Common Plan or Scheme
What is habit evidence?
Routine, regular, conformity with habit. Can also be a habit of a corporation.
When can a defendant bring in evidence of the victim’s character?
Pertinent trait of the victim opens the door for prosecution.
Prosecutor can rebut and show that defendant has the same trait they are accusing victim of.
Can a defendant introduce a pertinent character trait?
Yes, but opens the door for the prosecutor to rebut.
Can cross-examine defendant’s character witness about specific acts, but must accept answer.
Defendant can only use opinion or reputation evidence.
What is the basic rule for character evidence in criminal cases?
Prosecution not allowed to introduce bad character of the defendant
Can character evidence come in in civil cases?
Generally, no.
Exception: civil case involving child molestation or assault, then prior acts allowed.
When character evidence is admissible, how can it be proved?
Reputation or opinion.
What is the general rule for character evidence?
Not allowed to prove propensity.
What is the rule for prior inconsistent statements and impeachment?
Can be proved by extrinsic evidence, but only if witness is given the opportunity to explain or deny evidence.
On what can an expert base their opinion?
Persona observation.
Evidence presented at trial
Information reasonably relied upon in field.
- May base on facts otherwise inadmissible.
- Reverse 403 test. (does probative value outweigh risk?)
Can the court appoint an expert?
Yes, must let each party know.
Each party can depose and call or cross.
What is the rule for character truthfulness or untruthfulness?
FRE 608(a) Can introduce to target dishonesty of witness, only option or reputation, but not specific acts.
FRE 608(b) Specific acts: may cross-examine, must be probative of truthfulness, must accept answer.
FRE 609
- Crimes involving dishonesty or false statement always allowed.
- Felony (death or one year) allowed unless 403 test (reverse 403 for criminal defendant).
- If 10 or more years old, reverse 403 test and notice.
- If pardoned: not allowed.
- Evidence of a juvenile adjudication is not admissible to impeach a defendant.
- When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if: i) It is offered in a criminal case; ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and iii) Admitting the evidence is necessary to fairly determine guilt or innocence.
- Used to show bias: Under the Sixth Amendment Confrontation Clause, evidence of a witness’s juvenile adjudication can also be used by a criminal defendant to impeach a witness’s credibility by showing bias.
What are the three basic ways to impeach a witness?
Bad Character for Truthfulness or Untruthfulness
Bias
Sensory Competence
What is the ultimate issue rule?
Experts may express an opinion on the ultimate issue in most cases.
Not allowed to testify whether a criminal defendant has requisite mental state for an element of crime or defense.
