WITNESSES Flashcards
1
Q
COMPETENCY OF WITNESSES
A
- Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established
2
Q
Federal Rules of Competency
HIGH
A
- No mental/moral qualifications for witness testimony beyond these 2 limitations:
(1) Witness must have personal knowledge of matter about which they are to testify (note that proof of personal knowledge may consist of witness’s own testimony); and
(2) Witness must give an oath/affirmation to testify truthfully - If witness requires an interpreter, interpreter must be qualified & take an oath to make a true translation.
3
Q
Modern Modifications of the Common Law
Disqualifications
A
- FRE have removed CL witness disqualifications for lack of religious belief, conviction of a crime, & interest in lawsuit.
- These issues do not affect competency.
- Other CL disqualifications are modified as follows.
4
Q
Children—Case-by-Case Determination
.
A
- Competency of a child depends on capacity & intelligence of particular child as determined by trial judge
5
Q
Insanity
A
- An insane person may testify, if they understand obligation to speak truthfully & have capacity to testify accurately.
6
Q
Judge and Jurors
A
- Presiding judge may not testify as a witness.
- Jurors are incompetent to testify b/f jury in which they are sitting.
7
Q
Jurors—Inquiry into Verdict or Indictment
A
- During an inquiry into validity of a verdict/indictment, juror is generally prohibited from testifying about what occurred during deliberations/about anything that may have affected juror’s vote, & ct may not receive evidence of juror’s statement on such matters.
- However, juror may testify as to:
(1) Whether any extraneous prejudicial info was improperly brought to jury’s attention;
(2) Whether any outside influence was improperly brought to bear on any juror;
(3) Whether there is a mistake on verdict form; or
(4) Whether any juror made a clear statement that they relied on racial stereotypes/hostility to convict a criminal D - Not every comment indicating racial bias will qualify; ct must find that racial hostility was a significant motivating factor in juror’s vote to convict.
8
Q
Dead Man Acts
A
- Ordinarily, witness is not disqualified merely b/c they
have an interest in outcome of litigation. - However, some states have what are known as “Dead Man Acts.”
- These statutes provide that in a civil case, an interested
person (or their predecessor in interest) is incompetent to
testify to a personal transaction/communication w/ a
deceased, when such testimony is offered against representative/successors in interest of deceased. - A person is “interested” if they stand to gain/lose by judgment, or if judgment may be used for/against them in a
subsequent action.
9
Q
Tip
A
There is no Dead Man Act in Federal Rules, but a state Act will apply in fe cases where state law, under Erie doctrine, provides the rule of decision (most diversity cases). Thus, you should apply the Dead Man Act rules on the Multistate examination only if a question explicitly states that the particular jurisdiction in which the case arises has a Dead Man Act.
10
Q
FORM OF QUESTIONING
A
- Judge should exercise reasonable control over examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, & to protect witnesses from harassment.
- The following rules apply, but keep in mind that judge ultimately has discretion to control questioning.
11
Q
Leading Questions
A
- Leading questions (suggest desired answer) are generally allowed only on cross & are not permitted on direct examination.
- However, ct will ordinarily allow leading questions on direct:
(1) To elicit preliminary/introductory matter;
(2) When witness needs help responding b/c of loss
of memory, immaturity, or physical/mental weakness; or
(3) When witness is hostile, an adverse party, or a witness affiliated w/ adverse party
12
Q
Scope of Cross-Examination
A
- Party has a right to cross any opposing witness, but scope of cross is frequently a matter of judicial discretion.
- Cross is generally limited to:
(1) Scope of direct examination, including all reasonable inferences that may be drawn from it, and
(2) Matters that test credibility of witness
13
Q
Improper Questions and Answers
A
- Questions that are misleading (cannot be answered w/o making unintended admission), compound (requiring single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing/embarrassing, call for a narrative answer/speculation, or assume facts
not in evidence are improper & are not permitted. - Answers that lack foundation (witness has insufficient personal knowledge) & answers that are nonresponsive (do not answer specific question asked) may be stricken.
14
Q
USING DOCUMENTS TO AID ORAL TESTIMONY
A
- Witness cannot read their testimony from a prepared memo; they must testify on basis of their current recollection.
- However, a memo/other record may be used in certain circumstances.
15
Q
Tip
A
Any time you encounter an exam question in which a witness consults a writing, keep in mind differences between refreshing recollection & recorded recollection, which are covered below. The fact patterns are very similar & could be confusing if you have not thoroughly memorized distinguishing features.
16
Q
Refreshing Recollection—Present Recollection Revived
A
- Witness may use any writing/object for purpose of refreshing their present recollection.
- They usually may not read from writing while testifying b/c writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
17
Q
Safeguards Against Abuse—Adverse Party’s Options
A
- Whenever witness has used writing to refresh memory while on stand, adverse party is entitled to:
(1) Have writing produced at trial;
(2) Cross witness about writing; and
(3) Introduce parts of writing relating to witness’s testimony into evidence - If witness refreshed their memory b/f taking stand, adverse party is entitled to above options only if ct decides that justice requires it.
18
Q
Failure to Produce or Deliver Writing
A
- In a criminal case, if prosecution fails to produce/deliver writing as ordered, judge must strike witness’s testimony— &, if justice requires, declare mistrial.
- (When defense/party in a civil case fails to comply, judge has more discretion & can issue “any appropriate order.”)
19
Q
Past Recollection Recorded—Recorded
Recollection
HIGH
A
- Where a witness states that they have insufficient recollection of event to allow them to testify fully & accurately, even after consulting memo/record given to them on stand, record itself may be read into evidence if proper foundation is laid.
-
Foundation must include proof that:
(1) Witness has **insufficient recollection **to testify fully & accurately (showing doc to witness fails to jog their memory);
(2) Witness had personal knowledge of facts in record when record was made;
(3) Record was made by witness/under their direction, or it was adopted by witness;
(4) Record was made when matter was fresh in witness’s mind; and
(5) Record accurately reflects witness’s knowledge. - In other words, even though witness cannot currently remember facts, requirement is satisfied where witness vouches for accuracy of record at time it was made/adopted.
20
Q
Tip
A
Although record may be read into evidence & heard by jury, it cannot be admitted into evidence unless offered by adverse party. The rationale is that we don’t want jury giving record undue weight; it should serve as a substitute for witness’s testimony & nothing more. While this may seem like a minor point, it tends to come up on the bar exam.
21
Q
OPINION TESTIMONY
A
- Prohibit opinion evidence unless it will be necessary/ at least helpful.
22
Q
Opinion Testimony by Lay Witnesses: Requirements
HIGH
A
- Opinions by lay (nonexpert) witnesses are generally inadmissible.
- Opinion testimony by lay witness is admissible when it is:
(1) Rationally based on witness’s perception;
(2) Helpful to a clear understanding of witness’s testimony/ helpful to determination of fact in issue; and
**(3) Not based on scientific, technical, or other specialized knowledge
23
Q
Situations Where Opinions of Lay Witnesses Are
Admissible
A
An opinion of a lay witness is generally admissible with
respect to:
(1) General appearance/condition of person;
(2) Person’s emotional state;
(3) Matters involving sense recognition;
(4) Voice/handwriting ID;
(5) Speed of a moving object;
(6) Value of witness’s own services/property;
(7) Rational/irrational nature of another’s conduct; and
(8) Person’s intoxication
24
Q
Situations Where Opinions of Lay Witnesses Are Not
Admissible
A
- A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent/whether K was made, as these are legal conclusions that require specialized knowledge.
- The lay witness may testify only as to the
surrounding facts.
25
Opinion Testimony by Expert Witnesses: Requirements for Admissibility
HIGH
- For expert testimony to be admissible:
(1) subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact;
(2) opinion must be based on sufficient facts/data;
(3) opinion must be product of reliable principles & methods; and
(4) expert must have reliably applied principles & methods to facts of case.
26
Qualification as Expert
- Witness must be qualified as an expert.
- They possess special knowledge, skill, experience, training, or education
27
Proper Factual Basis
- Expert’s opinion must be supported by proper factual basis.
- Opinion can be based on any of 3 possible sources of info:
(1) Facts based on the expert’s own personal observation (ex. expert personally examined injured P).
(2) Facts made known to the expert at trial (ex. expert reviews testimony from trial, or counsel relates facts to expert on direct examination in form of a hypothetical question).
(3) Facts not known personally but supplied to expert outside courtroom & of a type reasonably relied upon by other experts in particular field.
- Such facts need not be admissible as evidence. But if facts would be inadmissible, proponent of expert testimony must not disclose facts to jury unless ct determines that their probative value in helping jury evaluate expert’s opinion substantially outweighs their prejudicial effect (reverse-Rule 403 balancing test that favors nondisclosure).
- Unless ct orders otherwise, expert need not disclose basis of opinion on direct examination. However, expert may be required to disclose such info on cross
28
Reasonable Probability
- Expert must possess reasonable probability regarding their opinion.
- Mere guess/speculation is not sufficient.
29
Reliability—Judge as Gatekeeper
- Fed cts determine reliability of all expert testimony
- Cts have discretion to consider a wide variety of factors in making this determination, 4 principal Daubert factors cts use to determine reliability of experts’ principles & methodologies.
- “TRAP":
* Testing of principle/methodology
* Rate of error
* Acceptance by experts in same discipline
* Peer review & publication
30
Use of Learned Treatises During Examination
- Relevant excerpt from treatise, periodical, or pamphlet
may be used during expert testimony.
- These “learned treatises” can be used to impeach experts & as substantive evidence ( to prove that what treatise says is true) under “learned treatise” exception to hearsay rule, subject to limitations:
(1) Treatise must be established as reliable authority by:
(a) testimony of expert on stand,
(b) testimony of another expert, or
(c) judicial notice;
(2) Excerpt must be used in context of expert testimony (it is called to attention of an expert witness on cross, or relied upon by an expert witness during direct examination); and
(3) Excerpt is read into evidence but cannot be received as exhibit
31
Opinion on Ultimate Issues
- An expert is generally permitted to render an opinion as to ultimate issue in the case (ex. “X was drunk” or “X was insane” or “That is X’s signature on the doc”).
- However, in a criminal case in which D’s mental state constitutes an element of crime/defense, an expert may not state an opinion as to whether the accused did/did not have mental state in issue.
32
Court-Appointed Experts
- A ct has broad discretion to appoint expert witnesses (although this rule does not limit any party’s right to call its own experts).
- On party’s motion/its own, ct may order parties to show cause why experts should not be appointed & may ask parties to submit nominations.
- Ct may then appoint any expert who consents to act, & ct must inform expert of their duties.
- Expert must advise parties of any findings they make, & any party may depose expert, call expert as a witness, or cross expert.
- Expert is entitled to reasonable compensation as set by the ct.
- Ct may authorize disclosure to jury that expert was appointed by ct.
33
EXCLUSION AND SEQUESTRATION OF WITNESSES
- Upon party’s request, trial judge must order witnesses excluded from courtroom.
- Judge may also do this on their own motion.
- Judge, however, must not exclude:
(1) party/designated officer/employee of a party,
(2) person whose presence is essential to presentation of party’s claim/defense, or
(3) person statutorily authorized to be present.
34
WITNESSES CALLED OR EXAMINED BY THE COURT
- Ct may examine party’s witness/call its own witness.
- Each party is entitled to cross a witness called by ct.
- Party may object to ct’s examining/calling a witness either at that time/at next available opportunity when jury is not present.
