Witnesses Flashcards
Witness competency generally
Presumd to be competent, but must pass tests of basic reliability.
Federal Rules of competency
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
Modern modifications of the common law disqualifications: Traits not factored in
Not factored in: religious beleif, conviction of a crime, interest in law suit
Modern modifications of the common law disqualifications: children
Case by case basis
Modern modifications of the common law disqualifications: Insanity
may speak if the understand the obligation and have the capacity to tell the truth
Modern modifications of the common law disqualifications: judges and juries
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
Dead Man Acts
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
Quesetioning Witnesses Generally
Judge should exercise reasonable control over witness questioning. Rules apply, but judges have ultimate discretion to control questioning.
Leading Questions
(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
Scope of Cross Examination
Generally limited to:
1) the Scope of direct examination
2) Matters that test the credibility of witness
Improper Questions and Answers
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)
Using documents to aid oral testimony generally
Generally, witness can’t read testimony from a prepared memorandum. However, there are exceptions.
Using documents to aid oral testimony: Refreshing recollection (present recollection revived)
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.
Using documents to aid oral testimony: Refreshing recollection (present recollection revived) – Adverse Party’s Options
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.
Using documents to aid oral testimony: Past recollection recorded ( recorded recollection)
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
Opinion Testimony generally
Generally, prohibit opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful
Opinion testimony by lay witnesses (nonexperts
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).
Opinion testimony by expert witnesses generally
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.
Expert opinion testimony: Proper factual basis Sources
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.
Expert Opinon testimony: reliability
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
Expert Opinoin Testimony: Use of learned treatise during examination
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)
Expert opinion on ultimate isuses
Generally permitted, except testimony concerning D’s mental state in crim case where it’s an element
Court appointed experts
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.
Exclusoion and Sequesteration of witnesses
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
Witnesses called or examiend by the court
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.
