Witnesses Flashcards
what is presumed of all witnesses?
competence
rule of interpreters
it witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation
requirements for witness testimony
(1) W must have personal knowledge of the matter to which they will testify
[evidence sufficient to support a finding of personal knowledge may include W’s own testimony]
(2) W must give an oath or affirmation to testify truthfully
To what extent may a child testify as a W?
case by case determination in which trial judge determines that individual child’s capacity and intelligence
to what extent may an insane person testify as a W?
insane person may testify, as long as they understand the obligation to speak truthfully and have the capacity to testify accurately
To what extent may a juror testify as a witness in an inquiry into the validity of a verdict or indictment?
Prohibited from testifying about:
[1] what occurred during deliberation
[2] anything that may have affected a juror’s vote
Allowed to testify about:
[1] whether any extraneous prejudicial information was improperly brought to the jury’s attention
[2] whether any outside influence was improperly brought to bear on any juror
[3] whether there is a mistake on the verdict form
[4] whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant –– court must find that racial animus was a significant motivating factor in the juror’s vote to convict [this is about 6th Am right to jury trial]
to what extent may a judge testify as a W?
The presiding judge may not testify as a witness
when should you apply the Dead Man Act rule on the multistage exam
if a question explicitly states that the particular jurisdiction in which the case arises has a dead man act and it is a question that requires you to apply state law due to the Erie doctrine [most diversity cases]
what is the dead man act
STATE statutes [not FRE] that provide that in a civil case, an INTERESTED person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased
Interested = person who stands to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action
what is the judge’s power over the form of questioning
judge has power to exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment
when are you allowed to ask leading questions on direct?
[1] to elicit preliminary or introductory matter
[2] when witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
[3] when the witness is hostile, an adverse party, or a witness affiliated with an adverse party ..??
what are improper questions?
[1] misleading questions
- cannot be answered without making an unintended admission
[2] compound questions
- require a single answer to more than one question
[3] argumentative qs
[4] conclusory qs
[5] unduly harassing or embarrassing q
[6] questions that call for a narrative answer or speculation
[7] questions that assume facts not in evidence
what are improper answers?
[1] answers that lack foundation [W has insufficient personal knowledge]
[2] answers that are non responsive
when may a W use a memorandum or other record while testifying?
To refresh their present recollection
To refresh their past recollection
How does a W refresh their present recollection?
(1) Use any writing
(2) generally cannot read from the writing while testifying because the writing is not authenticated and not in evidence
To what is an adverse party entitled when a witness refreshes her recollection while on the stand?
[1] have the writing produced at trial
[2] cross examine the witness about the writing, and
[3] introduce portions of the writing relating to the witness’s testimony into evidence
to what is an adverse party entitled when a witness refreshes her recollection before taking the stand?
an adverse party is entitled to the options to which it is entitled when witness refreshes her memory WHILE taking the stand IF the court decides justice requires it
what happens in a civil or criminal case when a party fails to produce or deliver a writing as ordered?
Criminal trial
- if prosecutor fails to produce or deliver a writing as ordered, the judge MUST strike the witness’s testimony, and, if justice requires it, must declare a mistrial
Civil trial
- if a party fails to comply with order to produce or deliver a writing, the judge has discretion to issue “an appropriate order”
To what extent may the court allow a party to read into evidence the record that refreshes the witness’s recollection?
When is this done:
- when witness does not remember the answer to the question by just looking at the document and then trying to speak on the stand without looking at it
what you can do:
- Read the item into evidence to be considered by the jury … and you can only ADMIT into evidence unless you are an adverse party admitting a recorded recollection into evidence AGAINST the witness who you are examining … rationale is that you don’t want the written refresher to substitute for testimony unless you’re an adverse party.
How you can lay foundation to read the item into evidence … show that:
[1] witness has insufficient recollection to testify fully and accurately [reading the doc fails to jog the memory]
[2] the W had personal knowledge of the facts in the record when the record was made
[3] the record was made by the witness or under their direction, or it was adopted by the witness
[4] the record was made when the matter was fresh in the witness’s mind
[5] the record accurately reflects the witness’s knowledge [witness vouches for the accuracy of the record at the time it was made or adopted]
relationship between refreshing recollection and hearsay
Refreshing recollection
- no hearsay problem because writing not offered into evidence
Reading recorded recollection
- hearsay problem, but remedied because it fits into a hearsay exception
Rule on opinion testimony by lay witnesses
Lay witnesses can only testify to facts! ——–Lay witnesses cannot give opinions on whether they acted as an agent or whether a contract was made because theses are legal conclusions
Opinions by lay witnesses are generally inadmissible UNLESS
(a) rationally based on the witness’s perception,
(b) helpful to a clear understanding of the witness’s testimony or helpful to the determination fo a fact in issue,
AND
(c) not based on scientific, technical, or other specialized knowledge
What are the 8 admissible opinions of lay witnesses
- general appearance or condition of a person
Ex: He looked 80 years old
Ex: She seemed ill
- state of emotion
Ex: He was angry
- Matters involving sense recognition
Ex: He smelled like garlic
Ex: the suitcase was heavy
- voice or handwriting identification
[foundation required]
Ex: It sounded like Mark
Ex: That’s Fran’s handwriting
- Speed of moving object
Ex: The truck was going very fast
Ex: The truck was going at least 60 mph [if experienced in estimating rates of speed]
- Value of own services
Ex: My time is worth $50 per hour
- Rational or irrational nature of another’s conduct
Ex: He was acting crazy
- Intoxication
[foundation may be required]
Ex: She was slurring her words and smelled of gin; she was drunk.
Requirements for expert testimony to be admissible
(1) subject matter must be on where scientific, technical, or other specialized knowledge would assert the trier of fact
[a] witness must be qualified as an expert –> W must possess special knowledge, skill, experience, training or education
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(2) the opinion must be based on sufficient facts or data
[i] expert’s own personal observation [such as examining an injury]
[ii] facts made known to the expert at trial
[e.g., expert reviews testimony from trial or counsel relates facts to expert on direct in form of hypothetical]
[iii] facts not known personally but supplied to expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field
—- these facts need not be admissible
—- BUT if facts are NOT admissible, the proponent of the expert testimony must not disclose the facts to the jury UNLESS, the reverse 403 balancing test allows them to come in
[i.e. the the court says that their probative value in helping jury evaluate expert’s opinion SUBSTANTIALLY OUTWEIGHS their prejudicial effect]
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(3) the opinion must be the product of reliable principles and methods
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(4) the expert must have reliably applied the principles and methods to the facts of the case
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(5) the expert must possess a reasonable probability regarding their opinion; not a mere guess or speculation
To what extent does an expert need to disclose the basis of his opinion?
An expert need not disclose the basis of the opinion on direct examination, but the expert may be required to do so on cross
