Witnesses Flashcards
Competency of Witnesses
witnesses must pass tests of basic reliability to establish competency to give testimony, but are generally presumed to be competent until contrary is established
Federal Rules of Competency
do not specify any mental or moral qualifications beyond:
(1) there must be evidence sufficient to support a finding that the witness has personal knowledge of matter about which they are to testify (proof of personal knowledge may consist of witness’s own testimony) and
(2) witness must give an oath or affirmation to testify truthfully
Competency of Witnesses
Modern Modications of Common Law Disqualifications
Federal Rules have removed common law witness disqualifications for lack of religious belief, conviction of crime, and interest in lawsuit. Others were just modified.
Competency: Modern Modifications
Children
Determined on a case-by-case basis. the competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge.
Competency: Modern Modifications
Insanity
an insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately
Competency: Modern Modifications
Judge and Jurors
the presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting
Modern Modifications: Judge and Jurors
Jurors - Inquiry into Verdict or Indictment
during an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. However, a juror may testify as to:
- whether any extraneous prejudicial information was improperly brought to jury’s attention
- whether any outside influence was improperly brought to bear on any juror
- whether there is a mistake on the verdict form or
- whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant (rationale: permit court to determine whether D’s 6th A right to jury trial was violated. Not every comment indicating racial bias will qualify; court must find that racial animus was significant motivating factor in juror’s vote to convict)
Competency of Witnesses
Dead Man Acts
ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have Dead Man Acts which provide that in a civil case, an interested person (or predecessor in interest) is incompetent to testify to personal transaction or communication with a deceased, when such testimony is offered against representative or successors in interest of deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in subsequent action.
No federal Dead Man Act. Only use this rule in fed. cases where state law, under Erie, provides rule of decision (most diversity cases).
Form of Questioning
Form of Questioning
Leading Questions
Form of Questioning
Scope of Cross-Examination
Form of Questioning
Improper Questions and Answers
Using Documents to Aid Oral Testimony
Using Documents to Aid Oral Testimony
Refreshing Recollection - Present Recollection Revived
Present Recollection Revived
Safeguards Against Abuse - Adverse Party’s Options
