Witnesses

Question 1

what are the two competency requirements for witness testimony?

Answer 1

1) must be evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify, and
2) witness must give an oath or affirmation to testify truthfully

Question 2

when may an insane person testify? (2 rqmts)

Answer 2

when they…
1) understand the obligation to speak truthfully, and
2) have the capacity to testify accurately

Question 3

what things can a JUROR testify to in a subsequent proceeding?

Answer 3

1) whether any extraneous prejudicial info was improperly brought to the jury’s attention
2) whether any outside influence was improperly brought to bear on a juror
3) whether there is a mistake on the verdict form; or
4) whether any juror made a CLEAR statement that racial stereotypes or animus were a SUBSTANTIAL motivating factor in their vote to convict a criminal defendant

Question 4

what is a “dead man act”?

Answer 4

(CIVIL cases only)
statutes that provide that an interested person (or predecessor in interest) is INCOMPETENT to testify to a personal transaction or communicated with a deceased when such testimony is offered AGAINST the representative/successors in interest of the deceased

Question 5

when is a person “interested” for purposes of dead man acts? (2 options)

Answer 5

when either…
1) they stand to gain or lose by the judgment OR
2) the judgment may be used for/against them in a later action

Question 6

when are leading questions allowed on DIRECT?

Answer 6

1) to elicit a preliminary or introductory matter,
2) when the witness needs help responding because of loss of memory, immaturity, physical/mental weakness, or
3) when the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 7

what two things is the scope of cross examination limited to?

Answer 7

1) the scope of the direct examination and all reasonable inferences that may be drawn from it, and
2) matters that test the credibility of the witness (impeachment)

Question 8

true or false: generally, a witness cannot read their testimony from a prepared memo, but must testify on the basis of their current recollection.

Answer 8

TRUE

Question 9

for what 2 general purposes can a memorandum or record be used during witness testimony?

Answer 9

1) to REFRESH a witness’ PRESENT recollection
2) to READ into evidence a record AFTER attempting to refresh a witness’ recollection yet witness STILL says they have INSUFFICIENT memory (past recollection recorded)

Question 10

true or false: a witness whose present recollection is being refreshed may read from the document while testifying.

Answer 10

FALSE (may only review and then testify as to their PRESENT recollection)

Question 11

whenever a witness uses a writing to refresh their memory while on the stand or party uses writing as a recorded recollection, what are the adverse party’s options/rights?

Answer 11

adverse party is entitled to…
1) have the writing produced at trial,
2) cross examine the witness about the writing, and
3) introduce portions of the writing relating to a witness’ testimony into evidence

Question 12

when may a writing/record initially used to refresh a witness’ memory be read into evidence? (2 things)

Answer 12

1) witness must state that they have insufficient recollection of an event to enable them to testify AFTER they’ve looked at the record given to them, and
2) the record sought to be read has a PROPER FOUNDATION

Question 13

what does a “proper foundation” require for purposes of past recollections recorded? (5 rqmts)

Answer 13

foundation must include proof that…
1) witness has insufficient recollection to testify fully and accurately (showing doc fails to jog memory),
2) witness has personal knowledge of the facts in the record when the record was made,
3) record was made by the witness or under their direction, or was adopted by the witness,
4) record was made when the matter was fresh in the witness’ mind, and
5) record accurately reflects the witness’ knowledge (W vouches for its accuracy at the time it was made despite not remembering the facts)

Question 14

when can a document used as a recorded recollection be ADMITTED into evidence? (not just read)

Answer 14

only if offered by an adverse party

Question 15

when is opinion testimony by lay witnesses admissible? (3 rqmts)

Answer 15

when the testimony is…
1) rationally based on a witness’ perception,
2) helpful to either a clear understanding of the witness’ testimony or to a determination of a fact at issue, and
3) not based on scientific, technical, or other specialized knowledge

Question 16

what opinions of lay witnesses are generally admissible? (topics)

Answer 16

opinions with respect to…
- general appearance or condition of a person
- state of emotion of a person
- matters involving sense recognition
- voice/handwriting ID
- speed of a moving object
- value of the witness’ own services or property
- rational/irrational nature of another’s conduct, and
- person’s intoxication

Question 17

what opinions of lay witnesses are NOT admissible?

Answer 17

opinions as to whether they or someone else acted as an AGENT or whether a CONTRACT was made
**RATIONALE = these are LEGAL conclusions that require specialized knowledge

Question 18

what must be shown to admit opinion testimony of an EXPERT witness?

Answer 18

proponent must show that it is more likely than not that:
1) subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact,
2) the opinion is based on sufficient facts or data,
3) the opinion is the product of reliable principles and methods, and
4) the expert’s opinion reflects a reliable application of the principles/methods to the facts of the case

Question 19

when is an expert “qualified”?

Answer 19

when it’s been satisfied that they possess special knowledge, skill, experience, training, or education

Question 20

what is a “proper factual basis” sufficient to support an EW’s opinion?

Answer 20

opinion that is based on any of the following:
1) facts based on an expert’s own personal observation,
2) facts made known to the expert at trial
3) facts not known personally but supplied to the expert outside of the courtroom AND of a type reasonably relied upon by other experts in a particular field (need not be itself admissible)

Question 21

when may inadmissible facts made known to the EW outside the courtroom (to the form the basis for their opinion) nonetheless be admitted to the jury?

Answer 21

if the court determines that their probative value in helping the jury evaluate the expert’s opinion SUBSTANTIALLY OUTWEIGHS their prejudicial effect
**NOTE = reverse 403 balancing test (favors NON-disclosure)

Question 22

true or false: an EW must disclose the basis for their opinion on direct examination.

Answer 22

FALSE (but may be required to do so on cross)

Question 23

what factors does a court consider in assessing the reliability of expert witness testimony? (TRAP)

Answer 23

Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Question 24

true or false: generally, a relevant excerpt from a treatise, periodical, or pamphlet MAY be used during expert testimony.

Answer 24

TRUE

Question 25

what 3 limitations are imposed on the use of learned treatises during expert testimony?

Answer 25

1) treatise must be established as reliable authority (by either testimony of expert on stand, testimony of another expert, or judicial notice),
2) excerpt must be used in the context of expert testimony (on direct or cross), and
3) excerpt can be read into evidence but NOT admitted as an exhibit

Question 26

true or false: generally, an expert is NOT permitted to render an opinion as to the ultimate issue in a case.

Answer 26

FALSE (experts generally CAN do this)

Question 27

in a criminal case in which the defendant’s mental state is an element of the crime/defense, can an expert state an opinion as to whether or not they had that mental state?

Answer 27

NO!

Question 28

who can a judge NOT exclude from the courtroom during witness testimony?

Answer 28

1) a party or a designated officer/employee of that party
2) a person whose presence is essential to teh presentation of a party’s claim or defense (usually an EW)
3) a person statutorily authorized to be present