Witnesses

Question 1

Under the Federal Rules, how is a witness determined to be competent?

Answer 1

(1) There must be evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify (note that proof of personal knowledge may consist of the witness’s own testimony); and
(2) The witness must give an oath or affirmation to testify truthfully.

If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.

The Rules do not specify any mental or moral qualifications for witness testimony.

Question 2

Under what circumstances may a child be deemed competent to testify as a witness?

Answer 2

The competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge.

Question 3

Under what circumstances may an insane person be deemed competent to testify as a witness?

Answer 3

An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.

Question 4

May judges or jurors ever testify as witnesses?

Answer 4

No. The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.

Question 5

On what matters may a juror testify during an inquiry into the validity of a verdict or indictment?

Answer 5

A juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters.

However, a juror may testify as to:

(1) Whether any extraneous prejudicial information was improperly brought to the jury’s attention;
(2) Whether any outside influence was improperly brought to bear on any juror;
(3) Whether there is a mistake on the verdict form; or
(4) Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant.

For (4), the rationale for allowing this evidence is to permit the court to determine whether the defendant’s 6th Amendment right to a jury trial was violated. Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.

Question 6

What are “Dead Man Acts”?

Answer 6

These statutes provide that in a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.

Question 7

HYPO: Shania sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial.

(1) May Shania testify to what Elvis said and did in negotiating the contract?
(2) May Shania’s friend Faith, who witnessed the making of the contract, testify as to what Elvis said and did?

Answer 7

(1) Given the facts as presented, yes. There is no federal Dead Man Act, so Shania’s interest in the outcome is immaterial.
(2) Yes. Even if there was a Dead Man Act in effect in the jurisdiction, Faith has no interest in the outcome.

Question 8

What are leading questions, and when are they allowed?

Answer 8

Leading questions are those that suggest the desired answer (for example, “You wanted the Defendant to rob the bank, correct?”)

Leading questions are generally allowed only on cross-examination and are not permitted on direct examination. However, the court will ordinarily allow leading questions on direct examination in the following circumstances:

(1) To elicit preliminary or introductory matter;
(2) When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
(3) When the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 9

What is the permissible scope of cross-examination?

Answer 9

Cross-examination is generally limited to:

(1) The scope of direct examination, including all reasonable inferences that may be drawn from it, and
(2) Matters that test the credibility of the witness

Question 10

What are some examples of improper questions and answers?

Answer 10

Questions that are:

(1) Misleading (cannot be answered without making an unintended admission)
(2) Compound (requiring a single answer to more than one question)
(3) Argumentative
(4) Conclusory
(5) Cumulative
(6) Unduly harassing or embarrassing
(7) Calling for a narrative answer or speculation
(8) Assume facts not in evidence

Answers may be stricken that:

(1) Lack foundation (the witness has insufficient personal knowledge)
(2) Are nonresponsive (do not answer the specific question asked)

Question 11

What restrictions exist for a witness who requires a writing or object for the purpose of refreshing their present recollection?

Answer 11

The witness may not read from the writing while testifying because the writing is not authenticated and not in evidence.

Question 12

HYPO: Homer’s house was burglarized 2 years ago, and several valuable items were stolen. Homer sued his insurer for failing to pay the loss covered by his homeowner’s policy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To refresh Homer’s recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule, and hearsay.

(1) What ruling?
(2) If Homer’s recollection is refreshed, may he then read the list into evidence?

Answer 12

(1) Overruled. Homer may consult the list to refresh his recollection.
(2) No. Homer may not read the list into evidence because it has not been authenticated and is not already in evidence. He may testify to his recollection after it has been refreshed by the list.

Question 13

Whenever a witness has used a writing to refresh their memory while on the stand, what is an adverse party entitled to do?

Answer 13

(1) Have the writing produced at trial;
(2) Cross-examine the witness about the writing; and
(3) Introduce portions of the writing relating to the witness’s testimony into evidence

If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.

Question 14

If, in a criminal case, the prosecution fails to produce or deliver a writing as ordered, what must a judge do?

Answer 14

The judge must strike the witness’s testimony, and, if justice requires, declare a mistrial.

Question 15

If the defendant in a criminal case, or either party in a civil case, fails to comply with an order to produce a writing, what must the judge do?

Answer 15

The judge is not required to do anything, but the judge has discretion to issue “any appropriate order.”

Question 16

HYPO: Homer’s house was burglarized 2 years ago, and several valuable items were stolen. Homer sued his insurer for failing to pay the loss covered by his homeowner’s policy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To refresh Homer’s recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Homer looks at the list, but it fails to jog his memory, and he is still unable to testify on the basis of current recollection. At this point, Homer’s attorney seeks to read the list into evidence. Objection: hearsay. Result?

Answer 16

Overruled. This is admissible hearsay as a substitute for Homer’s memory if a proper foundation has been laid.

Question 17

If a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, what can be done?

Answer 17

The record itself may be read into evidence if a proper foundation is laid.

Question 18

In the context of a witness unable to recollect an event even after consulting a record given to them on the stand, what would constitute proper foundation such that the record could be read into evidence?

Answer 18

The foundation must include proof that:

(1) The witness has insufficient recollection to testify fully and accurately;
(2) The witness had personal knowledge of the facts in the record when the record was made;
(3) The record was made by the witness or under their direction, or it was adopted by the witness;
(4) The record was made when the matter was fresh in the witness’s mind; and
(5) The record accurately reflects the witness’s knowledge. In other words, even though the witness cannot currently remember the facts, this requirement is satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted.

Question 19

HYPO: Homer’s house was burglarized 2 years ago, and several valuable items were stolen. Homer sued his insurer for failing to pay the loss covered by his homeowner’s policy. While on the stand at trial, Homer has trouble remember all of the stolen items. To refresh Homer’s recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Homer looks at the list, but it fails to jog his memory, and he is still unable to testify on the basis of current recollection. At this point, and after laying a foundation, Homer’s attorney seeks to introduce the list into evidence as an exhibit.

(1) Proper?
(2) May the insurer have the list introduced as an exhibit?

Answer 19

(1) No. Homer may read the list into evidence, but may not introduce the list itself.
(2) Yes. Because the insurer is an adverse party, it may introduce the list itself as evidence.

Question 20

What is the general policy regarding admissibility of opinion evidence?

Answer 20

The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.

Question 21

What are the requirements for opinion testimony by lay witnesses?

Answer 21

Opinions by lay witnesses (nonexperts) are generally inadmissible. However, there are many cases where no better evidence can be obtained. Opinion testimony by a lay witness is admissible when it is:

(1) Rationally based on the witness’s perception;
(2) Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
(3) Not based on scientific, technical, or other specialized knowledge

Question 22

What are some situations where opinions of lay witnesses are admissible?

Answer 22

An opinion of a lay witness is generally admissible with respect to:

(1) The general appearance or condition of a person;
(2) The state of emotion of a person;
(3) Matters involving sense recognition;
(4) Voice or handwriting identification;
(5) The speed of a moving object;
(6) The value of the witness’s own services or property;
(7) The rational or irrational nature of another’s conduct; and
(8) A persons intoxication

Question 23

What are some situations where opinions of lay witnesses are not admissible?

Answer 23

A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge. However, the lay witness may testify as to the surrounding facts.

Question 24

What are the requirements for admissibility of opinion testimony by expert witnesses?

Answer 24

For expert testimony to be admissible:

(1) The subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact;
(2) The opinion must be based on sufficient facts or data;
(3) The opinion must be the product of reliable principles and methods; and
(4) The expert must have reliably applied the principles and methods to the facts of the case

Question 25

What factors determine the qualification of an expert?

Answer 25

An expert will be deemed qualified if they possess special knowledge, skill, experience, training, or education.

Question 26

What are the 3 possible sources of information that an expert may use to demonstrate a proper factual basis for their opinion?

Answer 26

(1) Facts based on the expert’s own personal observation (for example, the expert personally examined the injured plaintiff)
(2) Facts made known to the expert at trial (for example, the expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question)
(3) Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence, but if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect)

Question 27

HYPO: Dr. Seuss, a board-certified child psychiatrist, testifies, “In my opinion, within a reasonable degree of medical probability, Bartholomew Cubbins’s preoccupation with hats is a disabling psychosis. My opinion is based on (a) my own clinical interviews and tests of Bartholomew; (b) exhibits 1 and 2 in evidence (MRI test results, medical office records of Dr. Grinch); (c) interviews of Bartholomew’s friends Wump, Gump, and Thump; and (d) a written report prepared by Dr. Sam I. Am.”

(1) Bartholomew moves to strike Dr. Seuss’s opinion because it is based, in part, on inadmissible hearsay. Result?
(2) Should Dr. Seuss be permitted to testify further, “Let me read to you what Wump said during our interview . . . and here’s what was in Dr. Sam I. Am’s report”?

Answer 27

(1) Overruled. All 4 of the things listed are permissible sources for experts. (a) is based on his personal knowledge. (b) is based on facts in evidence. (c) and (d) are not in evidence, and are likely inadmissible hearsay, but if Dr. Seuss establishes if this is the kind of information reasonably relied upon by experts in the field in forming opinions, then he may rely upon that information even though the information itself is inadmissible.
(2) Almost certainly not. Experts may state in general terms what they relied upon, but they’re not permitted to disclose the inadmissible hearsay itself.

Question 28

Must an expert disclose the basis of an opinion on direct examination?

Answer 28

No. However, the expert may be required to disclose such information on cross-examination.

Question 29

True or false: a guess or speculation is sufficient for an expert’s opinion.

Answer 29

False. The expert must possess reasonable probability regarding their opinion. A mere guess or speculation is not sufficient.

Question 30

How do judges determine the reliability of expert testimony?

Answer 30

Courts have discretion to consider a wide variety of factors in making this determination, but there are 4 principal Daubert factors that courts use to determine the reliability of expert’s principles and methodologies.

(1) Testing of principle of methodology
(2) Rate of error
(3) Acceptance by experts in the same discipline
(4) Peer review and publication

“TRAP”

Question 31

How may “learned treatises” be used during examination, and what are the limitations of their use?

Answer 31

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Under the Federal Rules, these “learned treatises” can be used not only to impeach experts, but also as substantive evidence under the “learned treatise” exception to the hearsay rule, subject to the following limitations:

(1) The treatise must be established as reliable authority by: (a) the testimony of the expert on the stand, (b) the testimony of another expert, or (c) judicial notice;
(2) The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and
(3) The excerpt is read into evidence but cannot be received as an exhibit

Question 32

May an expert witness testify to the “ultimate issue” in a case?

Answer 32

An expert is generally permitted to render an opinion as to the ultimate issue in the case (for example, “X was drunk” or “X was insane” or “That is X’s signature on the document”).

However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may NOT state an opinion as to whether the accused did or did not have the mental state in issue.

Question 33

HYPO: In a personal injury case, Defendant is alleged to have been driving recklessly at the time of a car accident. Witness who observed the event testifies that Defendant looked angry, smelled of alcohol, and drove away from the scene at 80 mph. Witness then states, “It looked to me as though Defendant was engaged in conduct constituting reckless disregard for the safety of others.” Objectionable?

(1) Yes, because Witness is testifying to the ultimate issue.
(2) Yes, because Witness’s opinion is not helpful.

Answer 33

(2) is correct. It’s not helpful to the jury because it is mostly legal jargon given without definition.

Question 34

Under what circumstances will witnesses be excluded from a courtroom?

Answer 34

Upon a party’s request, the trial judge MUST order witnesses excluded from the courtroom. The judge may also do this on their own motion.

Question 35

Who may a judge NOT exclude from a courtroom?

Answer 35

(1) A party or a designated officer or employee of a party
(2) A person whose presence is essential to the presentation of a party’s claim or defense
(3) A person statutorily authorized to be present

Question 36

May a court examine a party’s witness or call its own witness?

Answer 36

Yes. Each party is entitled to cross-examine a witness called by a court. A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.