Witnesses Flashcards
List (2)
Requirements for a witness to testify
- Has personal knowledge of the matter
- Oath or affirmation that they will testify truthfully
Can a child testify?
Depends on their capacity and intelligence as determined by trial judge but general yes
Can an insane person testify
Yes, as long as they understand they must testify truthfully and have capacity
Can a presiding judge testify at the current trial?
NO!
Can a presiding jury member testify?
NO!
List (4)
If there is an inquiry into a the validity of a verdict, what can a juror testify to?
- If extraneous prejudical info was improperly brought to jury’s attn
- If outside influence had bearing on any juror
- If there was a mistake on the verdict form
- If a juror makes a clear statement that they based their decisions on racial stereotypes or animosity to convict the criminal defendant and was a significiant motivating factor into juror’s decision
What is a Dead’s Man Rule?
In a civil case, an interested person cannot testify against a dead person about communications with that dead person
What’s the reason for DMR
Intent is to protect representatives or successors when testimony is being offered against the representatives or successors of the dead person’s interests
What type of cases are Dead Man Rules allowed in?
Civil case, meaning that they do not fall under the FRE!!
What makes a person interested?
If the stand to gain or lose by the judgement or if judgement can be used for or against them in a future case
When to apply a Dead Man’s Rule?
ONLY when the facts explicitly state that the jx has a DMR statute
Is there a Dead Man Rule in the Federal Rules?
NO!!!!!!!!!
ONLY use on state level IF the prompt says that the particular jx uses DMR!!
Are leading questions allowed?
generally YES on CROSS-EXAMINATION
on direct examination ONLY in certain circumstances
List (5), HAARE
When are leading questions on direct examination allowed?
- When witness is hostile
- When witness is an adverse party
- When witness is affiliated with an adverse party
- When witness needs help remembering
- To elicit preliminary or introductory info
What is cross-examination of a witness limited to?
- The questions are within the scope of direct examination + show that reasonable inferences can be drawn from making these cross-examination questions
- Matters that test the credibility of the witness
memorize list generally
What type of questions are NOT allowed?
- misleading
- compound - require one answer to multiple Qs
- argumentative
- conclusory
- cumulative
- unduly harassing
- embarrassing
- call for narrative answer
- call for speculation
- assume facts in evidence are improper
- assume facts in evidence are not permitted
What types of answers can be stricken (removed from record)?
Answers that:
- lack foundation
- non-responsive
When can a document be used by a witness to aid testimony?
to refresh their recollection
When can a document NOT be used by a witness to aid testimony?
To read from
Witness has to testify based on their current recollection
List (3)
If a witness uses a writing to refresh their present recollection while on the stand, what safe guards does the adverse party have?
- Have the writing produced at trial
- Cross-examine the witness about the writing
- Introduce portions or all of writing as long as related to witness’s testimony into evidence
If a witness uses a present writing to refresh their present recollection BEFORE taking the stand , what safeguards does adverse party have?
ONLY IF justice so requires:
- Have the writing produced at trial
- Cross-examine the witness about the writing
- Introduce portions of writing relating to witness’s testimony into evidence
2
What happens if the prosecution fails to produce or deliver a writing in criminal cases?
- Judge must strike witness’s testimony
- Declare mistrial if justice so requires
What happens if the defense fails to produce or deliver a writing in criminal cases?
Judge has more discretion can issue “any appropriate order”
*hearsay exception*
What if the witness is still unable to recall the event even after using the record to refresh their memory?
Record can be read into evidence
IF
a proper foundation is laid
list (5), “and”
How is a proper foundation laid?
- Insufficient recollection - witness has insufficient recollection to testify fully + accurately
- Personal knowledge - witness HAD personal knowledge of the facts in the record when record was made
- Record - record was made by the witness, under direction of witness, or adopted by witness
- Fresh - record was made when matter was fresh in the witness’s mind _AND_
- Accuracy - witness vouches that record is accurate even thought they do not currently remember the facts
List (2), *hearsay exception*
Can a recorded recollection be read into evidence?
ONLY IF:
- Witness reads record and cannot recall
- Proper foundation is laid
*hearsay exception*
Can a recorded recollection be admitted into evidence as an exhibit?
NO!
unless offered by adverse party
*hearsay exception*
How can a recorded recollection be admitted into evidence as an exhibit?
ONLY IF:
offered by the adverse party
What is the rationale for allowing only the adverse party to admit a recorded recollection into evidence?
Don’t want jury giving undue weight – they should place more importance on the witness testimony
What safe guards does the adverse party have for recorded recollections?
- Have the writing produced at trial
- Cross-examine the witness about the writing
- Intro portions of writing relating to witness’s testimony into evidence
Is opinion testimony allowed?
Generally inadmissible unless no better testimony available
When is opinion testimony allowed?
When no better evidence can be obtained
List (4)
When is opinion testimony of a lay witness admissible?
Opinion is:
- Rationally based on witness’s perception
- Helpful to make it easy to understand witness’s testimony
- Helpful to determine a fact in issue
- NOT based on specialized knowledge (scientific, technical etc)
What types of opinion are admissible by a lay witness
Opinions about:
- General apperance or condition of a person
- State of emotion
- Sense recognition
- Voice or handwriting identification - foundation required
- Speed of moving object
- Value of their own services
- Rational or Irrational Nature of another person
- Intoxication - foundation may be required
list (2)
When are opinions of a lay witness NOT admissible?
- If they acted as an agent
- If a contract was made
Why are certain opinions of lay witnesses NOT permissible
b/c these opinions are LEGAL CONCLUSIONS which require SPECIALIZED knowledge … and this happens when the W was acting as an agent or if there was a contract
List (4)
What are the requirements to admit an expert witnesses testimony?
- The specialized knowledge would help trier of fact
- Opinion must be based on sufficient facts or data
- Opinion must be product of reliable principles and methods
- Expert must have reliabily applied principles and methods to facts of case
What makes someone an expert
They have special knowledge, skills, experience, training or education
What are 3 sources of information that will make the expert’s opinion supported by proper facutal basis?
- Facts are based on expert’s own personal observation
- Facts are made known to expert at trial
- Facts provided outside of court have to be facts reasonably relied upon by other experts in the field (i.e. electronic med record)
Do facts that an expert witness does not personally know but learns outside the courtroom and are facts that are reasonably relied upon by other experts need to be:
- admissible?
- if inadmissible?
Admissible:
NO
Inadmissible
proponent of expert testimony cannot disclose facts to jury unless probative > prejudical (reverse Rule 403)
Does the expert witness need to disclose where the basis of their opinon comes from on direct examination?
NO
Does the expert witness need to disclose where the basis of their opinon comes from on cross examination?
MAY be required
What level of probability is required by the expert when giving their opinion?
Reasonably probability
Can an expert witness guess or speculate during testimony regarding their opinion ?
what do they need to have?
NO!
need to have reasonable probability
Hint: TRAPP
What are the four factors that the court uses to determine the reliability of an expert’s principles and methodologies?
T: testing of principle of methodology
R: rate of error
A: acceptance by experts in same field
P: peer review and publication
*hearsay exception*, list (3)
Under what conditions can a learned treatise be used during expert testimony?
- Treatise is established by a reliable authority
- Treatise must be used in the context of the expert testimony
- Treatise read into evidence but not received as an exhibit
*hearsay exception*
Information in treatises can be read into evidence if the treatise is
- relied upon by expert
- called to his attention during cross-examination; and
- Established as reliable by the witness, another expert, or judicial notice.
NOTE: The treatise itself is not admitted into evidence, but rather the relevant section is read in.
List (3)
Who/what is considered a reliable authority to establish a treatise for use during an expert witness’s testimony?
- Testimony of expert on stand
- Testimony of another expert
- Judicial notice
An expert is allowed to render an opinion as to an _________ issue in the case?
Utlimate issue
(i.e. X was drunk, X was insane, that is X’s signature)
When the D’s mental state is an element of the crime or defense committed, can an expert witness offer an opinion on whether D had or did not have themental state in issue?
NO
When is an expert NOT allowed to offer opinion on whether D had or did not have the mental state in issue?
When D’s mental state is an element of the crime or defense
Can the court appoint its own experts?
YES
What is the rationale behind allowing a party’s request to remove a certain witness from the court room?
So they dont hear the testimony of other witnesses and become influenced
List (4)
Who can the judge NOT exclude from courtroom?
- A party who is a natural person (i.e. P or D)
- An officer or employee of a party that is not a natural person (i.e. a business or the state) who has been designated as the representative of that party (i.e. the manager of the business)
- Jane Doe vs. Facebook, and Mark Zuck is officer of FB designated as FB’s representative to appear in ct.
- Person who’s presence is essential to the case
- an expert witness needs to hear testimony of lay witness
- Person statutorily authorized to be present (i.e. parent of a minor child who is testifying)
present recollection refreshed vs recorded recollection
p 45
