Witnesses Flashcards
What are qualifications for witness to be able to testify?
(A) competency - but this is presumed
(B) Personal knowledge of facts
(C) oath (interpreters must take oaths too)
When can presiding judge testify?
Never
When can jurors testify?
Generally cannot testify (a) before own trial or (b) after trial re what occurred during deliberations or anything that may have impacted their vote during inquiry into verdict. But, may testify as to:
- whether an extraneous prejudicial info brought to their attention
- whether outside influence occurred
- mistake on verdict form
- whether jurors made clear statement that they relied on racial animus to convict criminal D - must be significant motivating factor
What are Dead Man Statutes?
Some states have laws that in civil cases, an interested person is incompetent to testify re personal transaction/communication with a deceased person - i.e. someone who stands to gain/lose from the judgement
Note: remember ONLY states, not federal.
When are leading questions allowed?
- on cross exam
- on direct, only if:
(a) to elicit preliminary or introductory matter
(b) witness needs help responding due to loss of memory/immaturity/physical/mental weakness
(c) hostile witness, adverse party, affiliated with adverse party
What is within the scope of cross-exam?
- Scope of direct
- Credibility of witness
When can you use docs to aid witness testimony?
- present recollection refreshed
- past recollection recorded
When a witness cannot remember but memory can be refreshed by writing, how many they use that writing?
If recollection is refreshed, may look at it but can not read it aloud or introduce into evidence
When a witness refreshes recollection with writing, the adverse party is entitled to:
(A) have writing produced at trial
(B) cross exam re writing
(C) introduce writing re testimony into evidence
In criminal case, what happens if prosecution fails to produce a writing used to refresh witness recollection?
Judge MUST strike witness testimony and may order mistrial.
When witness cannot recall after reading writing, what can atty do with writing?
Can read it into evidence once proper foundation is laid. But, cannot be offered into evidence unless by adverse party.
When atty seeks to read into evidence past recollection recorded, what foundation must be laid?
(A) witness cannot remember after reading writing
(B) witness has PK
(c) record was made by witness or adopted by
(d) record made while matter fresh in memory
(e) witness vouches for accuracy of record
When are lay witness opinions admissible?
Generally inadmissible except when:
(a) rationally based on their perception
(b) helpful to understand their testimony or to determine fact in issue
(c) AND, not based on specialized knowledge
NOT admissible re legal conclusions (e.g., whether K was made, someone acted as agent)
When are expert opinions admissible?
Only if:
(a) qualified expert
(b) re subject matter in which specialized knowledge is needed
(c) opinion based on sufficient facts/data
(d) using reliable methods
(e) reliably applied methods/principles
(f) expert believes opinion is reasonably probable
What sources may an expert witness rely on in giving opinion?
(A) own personal observations
(B) facts made known to expert at trial
(C) facts of a type reasonably relied upon by those in the field - do NOT need to be admissible as evidence
