Witnesses

Question 1

what is presumed of all witnesses?

Answer 1

competence

Question 2

rule of interpreters

Answer 2

it witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation

Question 3

requirements for witness testimony

Answer 3

(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

Question 4

To what extent may a child testify as a W?

Answer 4

case by case determination in which trial judge determines that individual child’s capacity and intelligence

Question 5

to what extent may an insane person testify as a W?

Answer 5

insane person may testify, as long as they understand the obligation to speak truthfully and have the capacity to testify accurately

Question 6

To what extent may a juror testify as a witness in an inquiry into the validity of a verdict or indictment?

Answer 6

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]

Question 7

to what extent may a judge testify as a W?

Answer 7

The presiding judge may not testify as a witness

Question 8

when should you apply the Dead Man Act rule on the multistage exam

Answer 8

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]

Question 9

what is the dead man act

Answer 9

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

Question 10

what is the judge’s power over the form of questioning

Answer 10

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

Question 11

when are you allowed to ask leading questions on direct?

Answer 11

[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 ..??

Question 12

what are improper questions?

Answer 12

[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

Question 13

what are improper answers?

Answer 13

[1] answers that lack foundation [W has insufficient personal knowledge]

[2] answers that are non responsive

Question 14

when may a W use a memorandum or other record while testifying?

Answer 14

To refresh their present recollection

To refresh their past recollection

Question 15

How does a W refresh their present recollection?

Answer 15

(1) Use any writing
(2) generally cannot read from the writing while testifying because the writing is not authenticated and not in evidence

Question 16

To what is an adverse party entitled when a witness refreshes her recollection while on the stand?

Answer 16

[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

Question 17

to what is an adverse party entitled when a witness refreshes her recollection before taking the stand?

Answer 17

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

Question 18

what happens in a civil or criminal case when a party fails to produce or deliver a writing as ordered?

Answer 18

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”

Question 19

To what extent may the court allow a party to read into evidence the record that refreshes the witness’s recollection?

Answer 19

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]

Question 20

relationship between refreshing recollection and hearsay

Answer 20

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

Question 21

Rule on opinion testimony by lay witnesses

Answer 21

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

Question 22

What are the 8 admissible opinions of lay witnesses

Answer 22

1. general appearance or condition of a person

Ex: He looked 80 years old
Ex: She seemed ill

2. state of emotion

Ex: He was angry

3. Matters involving sense recognition

Ex: He smelled like garlic
Ex: the suitcase was heavy

4. voice or handwriting identification
   [foundation required]

Ex: It sounded like Mark
Ex: That’s Fran’s handwriting

5. 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]

6. Value of own services

Ex: My time is worth $50 per hour

7. Rational or irrational nature of another’s conduct

Ex: He was acting crazy

8. Intoxication
   [foundation may be required]

Ex: She was slurring her words and smelled of gin; she was drunk.

Question 23

Requirements for expert testimony to be admissible

Answer 23

(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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.
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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

Question 24

To what extent does an expert need to disclose the basis of his opinion?

Answer 24

An expert need not disclose the basis of the opinion on direct examination, but the expert may be required to do so on cross

Question 25

Who determines reliability of expert testimony [reliability of principles and methods] and how do they do it?

Answer 25

Who: Judges

How: 4 Daubert factors [TRAP mnemonic]

[T] Testing of principle or methodology

[R] Rate of error

[A] Acceptance by experts in the same discipline

[P] Peer review and publication

Question 26

What is the rule on using “learned treatises during examination” and to what extent may they be used?

Answer 26

In general, a relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony in order to:
[a] impeach experts, and
[b] be substantive evidence [to prove that what the treatise says is true]
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Limitations
[a] the treatise must be established as reliable authority by:

[i] the testimony of the expert on the stand,
[ii] the testimony of another expert,
OR
[iii] judicial notice

[b] the excerpt must be used in the context of expert testimony,

AND

[c] the excerpt is read into evidence but cannot be received as an exhibit

Question 27

relationship of learned treatises to hearsay rules

Answer 27

learned treatises are a hearsay exception

Question 28

To what extent may an expert render an opinion on ultimate issues?

Answer 28

An expert may render an opinion on ultimate issues UNLESS it is a criminal case in which the D’s mental state constitutes an element of the crime or defense

Question 29

To what extent may a court appoint an expert?

Answer 29

A court may appoint an expert witness at its discretion

Court may order parties to show cause why experts should not be appointed and may ask parties to submit nominations

court may appoint an expert who consents to act

court must inform expert of their duties

court may authorize disclosure to the jury that the expert was appointed by the court

Question 30

To what are the parties entitled when the court appoints an expert?

Answer 30

(1) expert must advise the parties of any findings they make

(2) parties can depose expert

(3) parties can call expert as a witness

Question 31

to what is the expert entitled to when appointed by the court?

Answer 31

reasonable compensation as set by the court

Question 32

To what extent must witnesses excluded from the courtroom?

Answer 32

The trial judge MUST exclude Ws from the courtroom when
(1) party requests exclusion

Question 33

who may motion to exclude Ws from courtroom?

Answer 33

Either party

trial judge

Question 34

Who must not be excluded from the courtroom?

Answer 34

(1) a party or a designated officer or employee

(2) a person whose presence is essential to the presentation of a party’s claim or defense

(3) a person statutorily authorized to be present

Question 35

To what extent may a court examine a party’s witness or call its own witness?

Answer 35

a court can do either one

Question 36

to what is a party entitled when a court examines a party’s witness or when the court calls its own witness?

Answer 36

(1) each party is entitled to cross-examine a witness called by the court

(2) a party may object to the court’s examining or calling a witness at that time or at the next available opportunity when the jury is not present

Question 37

at the common law, what issues affected competency?

Answer 37

lack of religious belief

conviction of a crime

interest in a lawsuit

Child-status

insanity-status

judge and juror status

Question 38

what is the scope of cross examination?

Answer 38

(1) The scope of direct examination, including all reasonable infer- ences that may be drawn from it, and

(2) Matters that test the credibility of the witness