Witnesses

Question 1

Generally who is a competent witness? Does mental ability and age affect competence?

Answer 1

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.

Question 2

Can a child testify as a witness?

What if their competency is questioned by one of the parties to the case?

Answer 2

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.

Question 3

What must a child have as a non-expert witness?

Answer 3

Additionally, as a non-expert witness, the child must have personal knowledge of the matter on which he/she intends to testify.

Question 4

What is personal knowledge?

Answer 4

A non expert witness must have personal knowledge of a matter in order to testify about the matter.

Question 5

What must a witness give to testify truthfully?

Answer 5

An oath or affirmation

Question 6

Can a judge testify at trial?

Answer 6

No

Question 7

Can a juror testify during trial?

Answer 7

Only under limited circumstances

Question 8

Under what circumstances can a juror testify after trial?

Answer 8

-> extraneous prejudicial information brought to jury’s attention
-> improper outside influence
OR
-> mistakes on verdict form

Question 9

After trial a jury is generally prohibited from testifying about what?

Answer 9

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.

Question 10

What is a Dead Man’s Statute?

Does this apply to civil or criminal cases?

Answer 10

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.

Question 11

How can a protected party or interested person waive the Dead Man’s Statute?

Answer 11

An interested person or protected party can waive the protection by
-> failing to object to a disqualified witness
OR
-> introducing protected evidence

Question 12

What is an impeachment? What can it be based on?

Answer 12

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

Question 13

Under what circumstance can evidence relating to the witness’s character for truthfulness be admitted?

Answer 13

Cannot bolster witness credibility
-> evidence of truthful character only admissible after witness’s truthful character is directly attacked

Question 14

When can opinion/ reputation testimony about a witness’s character for untruthfulness be admitted?

Answer 14

Admissible to attack witness’s character for untruthfulness.

Question 15

Can specific instances of conduct be admitted as indication of the witness’s character for truthfulness?

Answer 15

No

Question 16

When is evidence regarding a witness’s character for truthfulness admissible in cross-examination?

Answer 16

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.

Question 17

Can extrinsic evidence be admitted ro prove a specific act, after the witness has already denied the specific act?

Answer 17

No.

Exception exists for criminal conviction.

Question 18

Can a criminal conviction and arrest be used to impeach a witness’s character for truthfulness?

Answer 18

The criminal conviction yes, but not the arrest.

Question 19

What can evidence regarding crimes involving dishonesty and false statements be used for in terms of impeachment?

Answer 19

Can be used to impeach any witness for any conviction.

Question 20

Can convictions that don’t involve dishonesty/false statements be used to impeach a witness?

Answer 20

Admissible to impeach witness ONLY IF crime is punishable by death or imprisonment for more than 1 year.

Question 21

Can convictions that don’t involve dishonesty/false statements be used to impeach a witness if that witness is a criminal D?

Answer 21

Admissible ONLY IF its probative value outweighs the prejudicial effect to that D (stricter than usual balancing test).

Question 22

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?

Answer 22

Generally admissible BUT court has discretion to exclude if probative value is substantially outweighed by its prejudicial effect.

Question 23

Can evidence relating to a conviction or release that happened more than 10 years ago be admitted to impeach a witness?

Answer 23

Admissible if probative value substantially outweighs prejudicial effect
AND
reasonable written notice of intent to use evidence to adverse party implicated

Question 24

What kind of evidence of a criminal conviction never be used to impeach a defendant?

Answer 24

Criminal adjudication

Question 25

Can juvenile adjudication evidence be used to impeach a witness? If so, under what circumstances?

Answer 25

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

Question 26

When can prior inconsistent statements be used to impeach a witness?

Answer 26

Can be used to impeach if inconsistent with the witness’s testimony.

Question 27

When can extrinsic evidence of prior inconsistent statements be admitted?

When does this opportunity not apply to?

Answer 27

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.

Question 28

Can bias or interest be used to impeach a witness? why?

Answer 28

Can be used to impeach witness because relevant to credibility.

Question 29

Can sensory competence be used to impeach a witness?

Answer 29

Can be used to impeach for deficiency in capacities to perceive, recall, or relate information.

Question 30

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?

Answer 30

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

Question 31

When can an already impeached witness be rehabilitated?

Answer 31

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

Question 32

For what can religious opinions and beliefs be used for? What can it not be used for?

Answer 32

Cannot be used to impeach credibility

Can be admitted to show bias and interest

Question 33

When can contradictory evidence be used to impeach a witness?

Answer 33

Can be used to impeach if it contradicts witness’s testimony, including contradictory material extrinsic evidence.

Question 34

Can you impeach a witness through collateral issues?

Answer 34

Generally, cannot impeach credibility of witness by introducing extrinsic evidence that witness was wrong on a collateral matter.

Question 35

How does present recollection refreshed work?

Answer 35

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).

Question 36

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?

Answer 36

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.

Question 37

How does past recollection recorded work?

Can the past memo/record be read into evidence? Can it be received as an exhibit?

Answer 37

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.

Question 38

When can a lay witness opinion be admitted?

Answer 38

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.

Question 39

When is expert witness testimony admissible?

Answer 39

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).

Question 40

Can expert testimony that goes to the credibility of a witness be admitted? Why so?

Answer 40

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.

Question 41

What are the requirements of a qualified expert?

Answer 41

-> 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”)

Question 42

Who makes the determination of whether an expert is qualified or not? What rules must this party follow in its determination?

Answer 42

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.

Question 43

What ultimate issue can an expert not state their opinion on?

Answer 43

Expert may not state an opinion about whether criminal D had the requisite mental state.

Question 44

Can an expert create the basis of their opinion on inadmissible facts?

Can such facts be disclosed to the jury?

Answer 44

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.

Question 45

In order to provide an expert with facts, must the question be asked in a hypothetical manner?

Answer 45

No.

Question 46

When can the adequate of the expert’s knowledge be challenged?

Answer 46

On cross-examination

Question 47

When is payment of the witness prohibited?

Are there any exceptions?

Answer 47

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

Question 48

When is payment of a witness permitted?

Answer 48

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