Witnesses Flashcards
Witnesses are generally presumed to be competent unless the contrary is established.
True or False.
True.
What are the two competency requirements?
- Witness must have personal knowledge.
- Witness must give oath to testify truthfully.
Can judges and jurors testify in the case that they are sitting for?
No.
When can leading questions be asked?
Cross-Examination
What is Cross-Examination generally limited to?
- The scope of the direct examination.
- Matters that test the credibility of the witness.
A witness can read from the writing that is being used to refresh recollection.
True or False.
Why?
False, because the writing is not authenticated and not in evidence.
How must the foundation be laid for evidence that did not help the witness remember an event, after there was an attempt at recollection?
(Past Recollection Recorded - Recorded Recollection 6.3.2)
1) The witness has insufficient recollection to testify fully and accurately.
2) The witness had personal knowledge of the facts in the record when the record was made.
3) The record was made when the matter was fresh in the witness’s mind AND;
4) The record accurately reflects the witness’s knowledge.
Opinions by lay witnesses are generally inadmissible.
True or false.
True.
When is a lay witness’s opinion admissible? What are the requirements?
When there is no better evidence that can be obtained.
Testimony is:
- Rationally based on the witness’s perception;
- Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
- Not based on specialized knowledge.
What are the requirements for the admissibility of expert testimony?
1) The subject matter must be one where specialized knowledge would assist the trier of fact (jury);
2) The opinion must be based on sufficient facts or data.
3) The opinion must be the product of reliable principles and methods:
4) The expert must have reliably applied the principles and methods to the facts of the case.
What is TRAP?
(Module 6.3.4(a), Page 42)
The addition requirements for Expert Testimony.
- Testing of principle or methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and publication
When can a Learned Treatise be used during expert testimony?
- To impeach experts.
- As substantive evidence to prove what the treatise is saying is true.
Explain the Learned Treatise Expection to the Hearsay rule.
- Treatise must be established as a reliable authority.
- The excerpt must be used in the context of expert testimony.
- The excerpt is read into evidence but not received as an exhibit.
Can a party request that the trial judge order a witness to be excluded from the courtroom?
Yes.
(Module 6.4, Page 43)
Can a court call it’s own witness?
Can a party object?
Yes.
Yes.
(Module 6.5, Page 43)
