Witnesses Flashcards
When is a witness competent?
Anyone who has personal knowledge of the matter about which they are going to testify and is willing to make an oath to tell the truth is competent.
[Personal Knowledge + Willing to Take Oath = Competent]
- Children with knowledge and maturity to understand oath are competent
- “Dead Man Statutes” - State laws that limit the witnesses ability to testify about transactions with people who are now dead
Judge as a Witness
The judge cannot be a witness in trial they are overseeing
Juror as a Witness
- Juror cannot testify at trial they are sitting for.
Rule 606(b)
A juror may not testify as a witness in an inquiry into the validity of a verdict or indictment as to:
- Any statement made during deliberations
- Any incident that occurred during deliberations, OR
- The effect of anything upon any juror’s mind
EXCEPT to testify after trial about any
- Extraneous/Prejudicial information improperly brought to the jury’s attention
- An outside influence improperly brought to bear on a juror
- A clerical or technical error made in entering the verdict on the form OR
- A juror made a clear statement that he relied on racial stereotypes or animus in convicting a defendant
Impeaching a Witness (3 Methods)
- Show that the witness is dishonest (character for truthfulness/untruthfulness)
- Show witness is biased
- Sensory competence called into question
Bias
- Show witness has some reason to lie or shade the facts.
- [Witness is being paid to testify, is in a relationship with XYZ, agreed to testify for reduced sentence, etc.]
Sensory Competence
- Witness is mistaken in some way (as to what they perceived)
- [Bad eye sight, hearing, etc.]
Impeaching Witness - Character for Truthfulness or Untruthfulness
A witness can be attacked through testimony from other witness as to their honesty/dishonesty. (FRE 608(a)).
- Can attack through a character witness or cross-examination. NOT prior specific incidents [see exception]
FRE 608(b)
Allows for questioning witness for specifics acts of dishonesty.
- Must be probative of untruthfulness
- Only permitted to ask – must accept witness’s answer as is
- Must have reasonable basis for asking the question
Impeachment of Witness through Criminal Conviction Rule 609
- Crime must be a felony that is punishable by death or carries more prison time for more than a year.
- Court will allow unless prejudice substantially outweighs probative value
- Typically more allowable for crimes involving dishonesty (perjury, fraud, embezzlement)
10 Year Rule
If conviction (or release from prison) is older than 10 years then evidence is not admissible unless:
- the probative value of the conviction substantially outweighs the prejudicial effect AND
- Adverse party was given reasonable advance notice
Pardon
- Pardoned convictions may not be used for impeachment of witness
Impeaching Witness through Prior Inconsistent Statement
Can be done with any kind of statement. If it is extrinsic statement, then witness must have opportunity to explain or deny the evidence.
Impeachment of Hearsay Declarant
Impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness.
[Declarant is not in court and their hearsay statement made it into the record through a hearsay exception]
Rehabilitating the Witness
Three Ways
- Give witness chance to explain/clarify
- Prior consistent statements
- Evidence of witness’s good character and/or honesty
Lay Witness Testimony
Generally, we want facts, not opinions, from witnesses.
- Opinions are admissible from a lay witness with respect to common sense impressions (speed, appearance, intoxication, etc.)
Rule: For a lay witness opinion to be admissible it must be:
- Based on the perception of the witness AND
- Helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case
CANNOT be scientific, technical, or specialized knowledge
Expert Witness Testimony
An expert witness may offer opinions or conclusion if
- The subject matter is scientific, technical, or specialized information AND
- It will help the trier of fact understand the evidence or determine a fact act issue
Apply the Daubert Test When Considering if a Witness is an Expert:
Witness needs to be:
- Qualified by knowledge, skill, experience, training, or education;
- Base testimony on sufficient facts or data;
- Base testimony on reliable principles and methods; AND
- Apply those principles and methods reliably to the facts of the case
Experts and Ultimate Issue
Rule: Experts may express an opinion on the ultimate issue in most cases UNLESS it is about a requisite mental state of a criminal defendant.
