Witnesses

Question 1

Witness Competency

Answer 1

Must have personal knowledge of the matter they are testifying about and must take an oath/affirmation to tell the truth.

Presumption of competence. Judge determines if contrary established.

Question 2

Jurors Talking

Answer 2

Can’t say: what happened during deliberations

Can say: whether extraneous prejudicial information was brought to jury, whether there was outside influence, whether there is a mistake on the verdict form, whether any juror clearly stated they relied on racial stereotypes to convict criminal D.

Question 3

Dead Man’s Act

Answer 3

State issue only.

In a civil case, an interested person (someone who stands to gain or lose by the judgment) in incompetent to testify about a personal interaction with a dead person when that testimony is offered against the representative of the dead person.

Question 4

Leading Questions

Answer 4

Allowed on cross only, unless eliciting preliminary/introductory matters, when witness needs help because of some impediment, or when witness is hostile/adverse.

Question 5

Scope of Cross

Answer 5

Limited to scope of direct (and inferences from direct) and matters that challenge credibility.

Question 6

Improper Questioning

Answer 6

Misleading
Compound
Argumentative
Conclusory
Cumulative
Harassing
Calling for narrative/speculation
Assuming facts not in evidence

Question 7

Improper Answers

Answer 7

Lack of personal knowledge
Non-responsive

Question 8

Refreshing Recollection

Answer 8

Can happen before or after taking stand. Can use any writing or object, but cannot read from that writing and the writing is not put in evidence.
-If on stand, adverse party can have that writing produced, can cross about it, and can introduce portions into evidence.

Question 9

Recorded Recollection

Answer 9

Foundation:
-Witness has insufficient recollection
-Witness had personal knowledge of the facts in the record when it was made
-Witness made, directed or adopted the record
-Record was made when matter was fresh in witness’s mind

Record can be read but not admitted into evidence unless offered by adverse party.

Exception to hearsay.

Question 10

Lay Testimony

Answer 10

Admissible when rationally based on lay witness’s perception, helpful, and not based on specialized knowledge.
-Appearance/Condition
-State of Emotion
-Sensory Matters
-Voice or Handwriting ID
-Speed
-Value of Services
-How someone was acting
-Intoxication

Inadmissible: whether someone acted as an agent or whether a contract was made

Question 11

Expert Testimony

Answer 11

Admissible if:
1. Specialized knowledge would be helpful
2. Opinion is based on sufficient facts (personal observations, facts learned at trial, facts learned before trial that are reasonably relied on by other experts)
3. Opinion is the product of reliable methods/principles (Daubert factors: testing, rate of error, acceptance in discipline, peer review)
4. Expert reliably applied those methods/principles to the facts

-Note: No opinion on crim D mental state if constitutes an element of the crime/defense.