Witnesses Flashcards
Generally who is a competent witness? Does mental ability and age affect competence?
A person with personal knowledge who gives an oath/affirmation to testify truthfully is competent; a witness’s mental abilities affect credibility rather than competence; there is no minimum age for competency.
Can a child testify as a witness?
What if their competency is questioned by one of the parties to the case?
Yes a child can.
But if a child’s competency is questioned, then the court must evaluate the child’s:
-> intelligence
-> ability to differentiate between truth and falsehood
AND
-> understanding of the importance of telling the truth.
If the child is unable to understand the requirement to tell the truth, the child is incompetent to be a witness.
What must a child have as a non-expert witness?
Additionally, as a non-expert witness, the child must have personal knowledge of the matter on which he/she intends to testify.
What is personal knowledge?
A non expert witness must have personal knowledge of a matter in order to testify about the matter.
What must a witness give to testify truthfully?
An oath or affirmation
Can a judge testify at trial?
No
Can a juror testify during trial?
Only under limited circumstances
Under what circumstances can a juror testify after trial?
-> extraneous prejudicial information brought to jury’s attention
-> improper outside influence
OR
-> mistakes on verdict form
After trial a jury is generally prohibited from testifying about what?
A juror is generally prohibited from testifying after trial about jury deliberations, including:
-> any statement made, or incident that occurred, during jury deliberations—e.g., a juror’s statement about the strength of the evidence presented at trial
OR
-> the effect of anything upon that juror’s or another juror’s vote—e.g., a juror’s child was ill so the juror needed to get home quickly
OR
-> any juror’s mental process concerning the verdict—e.g., the jury misunderstood the judge’s instructions concerning the standard of proof or relied on stricken testimony.
What is a Dead Man’s Statute?
Does this apply to civil or criminal cases?
At CL, a part with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate.
UNLESS there was a waiver.
Does not apply to criminal cases.
How can a protected party or interested person waive the Dead Man’s Statute?
An interested person or protected party can waive the protection by
-> failing to object to a disqualified witness
OR
-> introducing protected evidence
What is an impeachment? What can it be based on?
A challenge to a witness’s testimony can be based on
-> character for untruthfulness
-> bias
-> ability to perceive or testify accurately
-> contradictory prior statement
-> another witness
Under what circumstance can evidence relating to the witness’s character for truthfulness be admitted?
Cannot bolster witness credibility
-> evidence of truthful character only admissible after witness’s truthful character is directly attacked
When can opinion/ reputation testimony about a witness’s character for untruthfulness be admitted?
Admissible to attack witness’s character for untruthfulness.
Can specific instances of conduct be admitted as indication of the witness’s character for truthfulness?
No
When is evidence regarding a witness’s character for truthfulness admissible in cross-examination?
Admissible if probative of witness’s truthfulness or untruthfulness regarding the witness OR of another witness about whose character the witness has already testified about.
Can extrinsic evidence be admitted ro prove a specific act, after the witness has already denied the specific act?
No.
Exception exists for criminal conviction.
Can a criminal conviction and arrest be used to impeach a witness’s character for truthfulness?
The criminal conviction yes, but not the arrest.
What can evidence regarding crimes involving dishonesty and false statements be used for in terms of impeachment?
Can be used to impeach any witness for any conviction.
Can convictions that don’t involve dishonesty/false statements be used to impeach a witness?
Admissible to impeach witness ONLY IF crime is punishable by death or imprisonment for more than 1 year.
Can convictions that don’t involve dishonesty/false statements be used to impeach a witness if that witness is a criminal D?
Admissible ONLY IF its probative value outweighs the prejudicial effect to that D (stricter than usual balancing test).
Can convictions that don’t involve dishonesty/false statements be used to impeach a witness if that witness is anyone else who isn’t a criminal D?
Generally admissible BUT court has discretion to exclude if probative value is substantially outweighed by its prejudicial effect.
Can evidence relating to a conviction or release that happened more than 10 years ago be admitted to impeach a witness?
Admissible if probative value substantially outweighs prejudicial effect
AND
reasonable written notice of intent to use evidence to adverse party implicated
What kind of evidence of a criminal conviction never be used to impeach a defendant?
Criminal adjudication
Can juvenile adjudication evidence be used to impeach a witness? If so, under what circumstances?
May impeach other witness’s character for truthfulness
-> in a criminal case
-> if an adult conviction for that offense would be admissible
AND
-> admitting the evidence is necessary to determine guilt or innocence
When can prior inconsistent statements be used to impeach a witness?
Can be used to impeach if inconsistent with the witness’s testimony.
When can extrinsic evidence of prior inconsistent statements be admitted?
When does this opportunity not apply to?
Admissible only if witness has chance to explain/deny statement and opposing party can examine witness about it
This opportunity to explain/deny the statement is NOT required for impeaching a hearsay declarant or when it’s an opposing party statement.
Can bias or interest be used to impeach a witness? why?
Can be used to impeach witness because relevant to credibility.
Can sensory competence be used to impeach a witness?
Can be used to impeach for deficiency in capacities to perceive, recall, or relate information.
When are you allowed to impeach a hearsay declarant? With what kind of information?
What id the hearsay declarant ends up being called as a witness?
Credibility fo declarant can be attacked by an evidence admissible if declarant had testified as a witness
If declarant is called as a witness, he can be examined as if under cross-examination
When can an already impeached witness be rehabilitated?
An impeached witness can be rehabilitated via
-> explaining clarifying the situation on redirect examination
-> offer opinion/ reputation evidence of witness’s character for truthfulness (only if character was attacked on that ground)
-> offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence
For what can religious opinions and beliefs be used for? What can it not be used for?
Cannot be used to impeach credibility
Can be admitted to show bias and interest
When can contradictory evidence be used to impeach a witness?
Can be used to impeach if it contradicts witness’s testimony, including contradictory material extrinsic evidence.
Can you impeach a witness through collateral issues?
Generally, cannot impeach credibility of witness by introducing extrinsic evidence that witness was wrong on a collateral matter.
How does present recollection refreshed work?
Witness may examine any item to refresh witness’s present recollection.
Testimony must be based on refreshed recollection, not the item (e.g. the witness cannot read from the refreshing item).
What can the adverse party do if the item used to refresh the witness’ recollection is a written document?
Any constraints on the item being admissible?
Adverse party may inspect item and enter relevant portions as evidence.
Item may be redacted by court in order for it to be admitted solely for the purpose of impeachment of the witness and nothing more,
AND
the item is admissible for substantial purposes ONLY IF it satisfies other restrictions on admissibility such as the hearsay rule.
How does past recollection recorded work?
Can the past memo/record be read into evidence? Can it be received as an exhibit?
Memo/ record about matter witness once had knowledge of but now has insufficient recollection of to testify about MAY be admissible under recorded recollection hearsay exception.
Past record/memo may be read into evidence BUT placed as an exhibit only at the request of the adverse party.
When can a lay witness opinion be admitted?
Admissible if
-> rationally based on the witness’s perception
-> helpful to clear understanding of witness’s testimony or determination of a fact in issue
AND
-> not based on scientific, technical, or specialized knowledge.
When is expert witness testimony admissible?
Expert must provide opinion in regards to a subject matter that is scientific, technical, or in which some other specialized knowledge (testimony is reliable) s required and if provided helps the trier of fact understand the evidence or determine a fact at issue (testimony is relevant).
Can expert testimony that goes to the credibility of a witness be admitted? Why so?
Some courts hold that expert testimony that goes to the credibility of a witness improperly invades the province of the jury to determine whether the witness is telling the truth.
What are the requirements of a qualified expert?
-> qualified as an expert by knowledge, skill, experience, training, or education
-> testimony based on sufficient facts/data
-> testimony product of reliable principles and methods
-> testimony reflects reliable application of principles/methods to facts of case AND reasonable degree of certainty (i.e. “probably”)
Who makes the determination of whether an expert is qualified or not? What rules must this party follow in its determination?
The judge makes the final determination if an expert is qualified.
Such a question is a preliminary question that does not need to adhere to the FRE.
What ultimate issue can an expert not state their opinion on?
Expert may not state an opinion about whether criminal D had the requisite mental state.
Can an expert create the basis of their opinion on inadmissible facts?
Can such facts be disclosed to the jury?
Yes. Opinion based on inadmissible facts admissible if other similar experts in the particular field would also reasonably rely on those kinds of facts and data in forming an opinion on the subject.
Yes. May disclose underlying facts to the jury if probative value substantially outweighs prejudicial effect.
In order to provide an expert with facts, must the question be asked in a hypothetical manner?
No.
When can the adequate of the expert’s knowledge be challenged?
On cross-examination
When is payment of the witness prohibited?
Are there any exceptions?
A lawyer may not offer to pay a witness any consideration:
-> in excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence, except that an expert witness may be offered and paid a non-contingent fee
-> contingent on the content of the witness’s testimony or the outcome of the litigation
OR
-> otherwise prohibited by law
When is payment of a witness permitted?
A witness in attendance in federal court or a deposition pursuant to a federal rule or court order is entitled to:
-> an appearance fee
AND
-> a travel allowance
