Witnesses

Question 1

Basic reliability requires:

Answer 1

Personal knowledge and oath/affirmation for truthfulness

Note: also need oath by interpreter if necessary

Question 2

When are leading questions allowed?

Answer 2

Generally only cross. But exceptions for direct:

1) elicit preliminary/intro matter
2) witness needs help responding because of lack of memory, immaturity, or physical/mental weakness
3) witness is hostile or adverse party

Question 3

Scope of cross-examination?

Answer 3

Limited to scope of direct exam AND matters testing the credibility of the witness

Question 4

Improper questions (state at least four)

Answer 4

Misleading, compound, argumentative, conclusionary, cumulative, unduly harassing/embarrassing, call for narrative answer/speculation, or assume facts not in evidence

Question 5

Improper answers (two):

Answer 5

Lack foundation or are unresponsive

Question 6

Can witness whose recollection is being refreshed read from the writing?

Answer 6

Not usually, because it’s not authenticated nor in evidence

Question 7

What can adverse party do when writing is produced to refresh a witness’ memory on the stand?

Answer 7

Have writing produced at trial, cross exam witness about it, and introduce into evidence the portions of writing related to witness’ testimony

Question 8

Can a record used to refresh recollection be introduced into evidence if witness still doesn’t remember?

Answer 8

Yes, if these are proven:
Witness has insufficient recollection
Had personal knowledge when record was made
Record was made by witness, under their direction, or adopted by them
Record was made when matters were fresh in their mind
Record accurately reflects witness’ knowledge (witness vouches for it)

Question 9

Can a record used to refresh recollection that was read into evidence also be introduced as an exhibit?

Answer 9

No, UNLESS done so by adverse party

Question 10

What are the requirements for a lay witness to give opinion testimony?

Answer 10

1) based on witness perception
2) helpful to a clear understanding of witness’ testimony or determination of a fact at issue, or
3) NOT based on scientific, technical knowledge

Question 11

What things can lay witness opine about? (Give at least four)

Answer 11

Appearance/condition of person 
State of emotion of a person
Matters involving the senses
Voice/handwriting ID
Speed of moving object
Value of witness own services or property
Rational or irrational nature of another’s conduct
A person’s intoxication l

Question 12

Reqs for expert testimony admissibility?

Answer 12

1) subject matter is scientific/technical
2) opinion is based on sufficient facts or data
3) opinion is the product of reliable principles and methods
4) experts reliably applied principles and methods to the facts of the case

Question 13

Must facts not known personally to an expert but that are reasonably relied upon by other experts be admissible as evidence? (For example, if they include hearsay)

Answer 13

No. But if they would be inadmissible, the proponent cannot disclose the facts to jury unless court decides they’re not overly prejudicial

Question 14

Four principal Daubert factors?

Answer 14

TRAP
Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Question 15

Can a learned treatise be used not only to impeach experts, but also as substantive evidence?

Answer 15

Yes, if established as reliable authority and used in the context of the expert testimony

Question 16

Expert opinion on ultimate issues- admissible?

Answer 16

Yes, UNLESS a criminal case where D’s mental state is an element of the crime or defense

Question 17

Upon a party’s request, the trial judge [must/may] order witnesses excluded from courtroom

Answer 17

Must.
Judge can also do this on their own motion unless it’s a party, someone whose presence is essential to presenting a party’s claim/defense, or someone who is statutorily authorized to be present