Witnesses

Question 1

Competency

Answer 1

Everyone is competent (no federal DMS) if
• Personal knowledge
• Oath or affirmation
Exceptions
• Jurors (except to impeach the verdict with evidence of racial animus, extraneous prejudicial information, unauthorized visit to crime scene, bribery or coercion
• Presiding judges

Question 2

Impeachment

Answer 2

Always relevant; mere fact that witness testifies puts their reputation for telling the truth relevant

Can never rehabilitate until after impeachment

Impeachment on a collateral matter (one bearing only on credibility that is unrelated to the trial)
• Extrinsic evidence is usually inadmissible

Methods: 3 I’s 4 C-ing
• Interest, motive, or bias
• Incapacity to observe, recall, or relate
• (Prior) Inconsistent statement
• Character evidence for truthfulness by reputation or opinion
• Character evidence for truthfulness by reputation or opinion
• (Prior) Conviction
• Contradiction

Question 3

Interest, motive, or bias

Answer 3

Extrinsic evidence is admissible

Question 4

Incapacity to observe, recall, or relate

Answer 4

Extrinsic evidence is admissible

Question 5

Prior Inconsistent statement

Answer 5

If solely offered for impeachment, only limited admissibility

Inconsistent: contradiction, omission, feigned lack of memory

Extrinsic evidence only admissible if
• Witness is given chance to explain or deny the PINS
• Adverse party is given opportunity to examine witness about PINS or
• Justice so requires

Court may exclude extrinsic evidence if
• Witness admits the PINS
• It involves collateral matter

Question 6

Prior Conviction

Answer 6

Prior
• +10 years: inadmissible unless probative value substantially outweighs the prejudicial effect (favors exclusion) and proponent gives adverse party reasonable written notice
• 10 years measured from the later of the date of conviction or release from confinement

Conviction
• Juvenile: admissible if (1) criminal case; (2) not against defendant; (3) an adult conviction for same offense would be admissible; and (4) necessary to fairly determine guilt.
• Conviction on appeal and the fact that it is on appeal is admissible
• Pardoned=inadmissible
• Guilty and nolo pleas=admissible

Crime
• Felony
o Punishable by death or +1 year in prison
o Other than Accused: admission subject to 403 balancing test
o Accused: Admissible if probative value outweighs the prejudicial effect

• Dishonesty Crimes
o Both felonies and misdemeanors
o 10 years or less=mandatory admission

Question 7

Contradiction

Answer 7

Evidence rather than witness’s own statement to contradict the testimony

Extrinsic evidence is permitted unless it involves a collateral matter

Question 8

Mode of Examination

Answer 8

Judge controls mode and order

No leading questions on direct unless
	Hostile witness
	Adverse witness
	Child witness
	Preliminary background info
	Refreshing recollection of witness

No leading questions when examiner and witness are on same side (no leading on cross if crossing witness that other party called as adverse witness)

Direct sets the scope of the cross (except for impeachment)

Question 9

Writing used to refresh memory

Answer 9

Examiner can use anything to jog memory

Authentication is not required and proponent may not introduce into evidence

Opponent may inspect, cross w/ evidence, show writing to jury for comparison, and introduce relevant portions to put testimony into context

Question 10

Sequestration

Answer 10

• At request of party or sua sponte, court must order witnesses excluded from courtroom
o Doesn’t apply to party, party’s representative, person whose presence is essential (expert), or person exempted by statute (victim)