Witnesses

Question 1

Witness competency generally

Answer 1

Presumd to be competent, but must pass tests of basic reliability.

Question 2

Federal Rules of competency

Answer 2

1) evidence of Personal knowledge of the matter
2) Oath or affirmation to testify truthfully

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

Question 3

Modern modifications of the common law disqualifications: Traits not factored in

Answer 3

Not factored in: religious beleif, conviction of a crime, interest in law suit

Question 4

Modern modifications of the common law disqualifications: children

Answer 4

Case by case basis

Question 5

Modern modifications of the common law disqualifications: Insanity

Answer 5

may speak if the understand the obligation and have the capacity to tell the truth

Question 6

Modern modifications of the common law disqualifications: judges and juries

Answer 6

Cases they are sitting/presiding over: incompetent to testify

Jurors are generally compentent in other cases, but generally incompetent to testify about deliberations or matters affecting pervious vote, but may testify as to:
1) Extranous prejudicial information
2) outside influence
3) mistake in verdict form
4) Another juror’s clearstatement that they relid on racial stereotypes or animus

Question 7

Dead Man Acts

Answer 7

Orginarily, a witness is NOT disqualified merely b/c they have an interest in teh outcome of the litigation. But some states implement DEAD MAN ACTS which apply to CIVIL CASES.

An interested person is incompetent to testify against decedent’s estate or successors about any personal transaction or communication with the deceased

For MBE: ASSUME NO DMA unless specified

Question 8

Quesetioning Witnesses Generally

Answer 8

Judge should exercise reasonable control over witness questioning. Rules apply, but judges have ultimate discretion to control questioning.

Question 9

Leading Questions

Answer 9

(Questions that suggest the desired answer)

Generally allowed ONLY on cross examination.

Generally not permitted on direct examination, EXCEPT:
1) Preliminary or introductory matters
2) Witness needs help responding
3) witness is hostile, adverse party, or affiliated with adverse party

Question 10

Scope of Cross Examination

Answer 10

Generally limited to:
1) the Scope of direct examination
2) Matters that test the credibility of witness

Question 11

Improper Questions and Answers

Answer 11

Misleading questions
Compound questions
Argumentative, conclusionary, cumulative, unduly harrasing or embarassing, call for a narrative answer or speculation, or assume facts not in evidence.

Answers that lack foundation (witness has insufficient personal knolwedge)

Answers that are nonresponseive (don’t answer specific question)

Question 12

Using documents to aid oral testimony generally

Answer 12

Generally, witness can’t read testimony from a prepared memorandum. However, there are exceptions.

Question 13

Using documents to aid oral testimony: Refreshing recollection (present recollection revived)

Answer 13

General rule exceptoin.

May use for the purpose of refreshing their PRESENT RECOLLECTION. But usually may not read from the writing while testifying b/c it is not authenticated and not in evidence.

Question 14

Using documents to aid oral testimony: Refreshing recollection (present recollection revived) – Adverse Party’s Options

Answer 14

If refreshed while on the stand, the adverse party may:
1) have the writing produced at trial
2) Cross examine the witness about the writing AND
3) introduce portions of hte writing relating to the witness’s testimony into evidence

If refreshed BEFORE taking the stand, entitled to above only by judge discretion. (justice requires.)

IN a criminal case, if prosecution fails to produce or deliver a writing as ordered, judge MUST STRIKE the witness’s testimony, and if justice requires, declare a mistrial.
In civil cases, judge has more discretion.

Question 15

Using documents to aid oral testimony: Past recollection recorded ( recorded recollection)

Answer 15

Where a witness states they have insufficient recollection of an event to enable them to testify fully and accuratley, even after they tried to refresh, the record iteslef may be read into eveidence IF:
1) Witness has INSUFFICIENT RECOLLECTION
2) Witness had PERSONAL KNOWLEDGE when record was made
3) Record was MADE BY the witness, made under their direction, or adopted by the witness
4) record was made when matters were FRESH in witnesses mind
5) record ACCURATELY reflects witness’ knowledge (witnes vouches at time it was made or adopted)

BUT record read into evidence but cannot be admitted as exihibt unless offered by adverse party

Question 16

Opinion Testimony generally

Answer 16

Generally, prohibit opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful

Question 17

Opinion testimony by lay witnesses (nonexperts

Answer 17

Generally inadmissable. But in cases where no better evidence can be obtained, can be admissible when it is:
1) rationally based on the witnesses preception
2) HELPFUL, AND
3) not basedo n specialized knowledge

CANNOT give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made. (legal conclusion).

Question 18

Opinion testimony by expert witnesses generally

Answer 18

Qualified witness (special knowledge) and
To be admissible:
1) subject is a matter that requiers specialized knowledge
2) opinion is based on sufficient facts or data
3) Reliable
4) experts opinions reflect a reliable application of the principles and methods to the facts of the case

^Standard: more likeley than not

Expert Must have proper factual basis.

Reasonable probablity requirement - regarding experts opinion.

Federal courts determine the reliability of all expert testimony.

Question 19

Expert opinion testimony: Proper factual basis Sources

Answer 19

1) Facts based on expert’s own Personal observation
2) Facts made known to the expert at trial
3) Facts supplied to expert outside courtoom that are of a type reasonably relied on by other experts in field
–these facts need not be admissible as evidence, but if inadmissible, proponent must not disclose teh facts to jury unles the court determines their probative value in helping jury evaluate the expert’s opinion SUBSTANTIALLY OUTWEIGHTS their prejudicial effect (opposite of 403)

Unless court orders otherwise, expert need not disclose the basis of the opinon on direct exam. However, expert may be required to on cross exam.

Question 20

Expert Opinon testimony: reliability

Answer 20

Federal courts determine. Lots of discretion, but main factors are:

Main factors: (TRAP)
1) testing of principle or methodology
2) Rate of error
3) Acceptance by other experts in same discipline
4) Peer revie and publicaiton

Question 21

Expert Opinoin Testimony: Use of learned treatise during examination

Answer 21

May be used in expert testimony.

Under Fed Rules, can be used to impeach experts and as substantive evidence subject to limitations:
1) Treatise msut be established as reliable authority
2) Excerpt must be used in context of expert testimony (called into attention of expert on cross, or relied upon by expert during direct); AND
3) the exercpt is read into evidence (but can’t be recieved as an exhibit)

Question 22

Expert opinion on ultimate isuses

Answer 22

Generally permitted, except testimony concerning D’s mental state in crim case where it’s an element

Question 23

Court appointed experts

Answer 23

Court has braod discretion to appoint (doesn’t limit party’s rights).

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

Question 24

Exclusoion and Sequesteration of witnesses

Answer 24

Upon a PARTY’s REQUEST, the trial judge MUST order witnesses excluded from the courtroom. (don’t want witnesses hearing other’s testimony).

Judge can also do it unilaterally.

Judge must not exclude:
1) Party of party’s designated rep
2) person whose presence is essential to claim or defense, OR
3) person statutoraily authorized to be present

Question 25

Witnesses called or examiend by the court

Answer 25

Court may examine parties witnesses or call own witness.

Each party entitled to cross examine a witness caled by the court.

Party may object to the courts examining or calling a witness.