Witnesses

Question 1

Witness Competency

Answer 1

A witness is presumed to be competent until proven otherwise
-Witness must give an oath or affirmation to testify truthfully
-Witness must have personal knowledge about the matter

Special cases:
-Judge may determine whether child is competent
-Insane person may testify as long as they understand obligation to speak truth
-Presiding judge may not testify
-Jurors cannot testify before the jury in which they sit
-In an inquiry into a verdict or indictment, a juror cannot testify what
occurred during deliberations or about how something affected a
juror’s vote

Question 2

Dead Man Act

Answer 2

In a civil case, an interested person may not testify to a personal transaction or communication with a deceased when the testimony if offered against the deceased’s beneficiaries

NO FEDERAL DEAD MAN ACT - limited to federal cases where Erie doctrine applies

Question 3

Forms of Questioning

Answer 3

Leading questions (suggest desired answer) are permitted only on cross or on direct to:
-Elicit preliminary matter
-Hostile witnesses
-Help witness because of loss of memory

Cross examination is limit to the scope of direct examination and matters that test the credibility of the witness

Improper questions:
-Misleading - cannot be answered without making an unintended admission
-Compound - requiring a single answer to more than one question
-Argumentative, conclusionary, unduly harassing or embarrassing, speculative, narrative

Improper answers:
-Lack of foundation - witness has insufficient personal knowledge
-Non-responsive - do not answer the specific question asked

Question 4

Present Recollection Refeshed

Answer 4

Any writing (or other things such as photos) may be used to refresh a witness’s memory

The witness CANNOT read from the writing while testifying

NO HEARSAY ISSUES - writing not offered into evidence

Question 5

Recorded Recollection

Answer 5

Only a record that meets several foundational requirements may be used:
-Witness had personal knowledge
-Witness made record or adopted it
-Record was made when matter was fresh
-Witness cannot remember events after reading the record

Record is read into evidence (but can only be used as exhibit if offered by adverse party)

Hearsay exception

Question 6

Lay Testimony

Answer 6

Opinion testimony by a lay witness is admissible when:
-Its rationally based on witness’s perceptions
-Helpful to trier of fact
-Not specialized knowledge (i.e., technical knowledge or legal conclusions)

Generally admissible:
-General appearance, emotional state, intoxication, or recognition of a person
-Voice or handwriting recognition
-Rationality of another’s conduct
-Speed of moving object
-Value of witness’s own services or property