Witnesses Flashcards
federal rules of competency
must be evidence to support a finding that the witness had personal knowledge of the matter they r going to testify about and the witness must give an oath or affirmation that they will be truthful
if interpreter needed they must also make oath re true translation
modern modifcations of common law witness disqualifiers
kids - case by case determination
insanity - can still testify if they undertand obligations to speak truthfully
juror cannot testify before the jury they are on
juror cant testify about deliberations or anything that may have affected jurors vote
presiding judge cant tesify as a witness
what can a juror testify to?
1) whether any extraneous prejudicial info was improperly brought to jurys attention 2) whether any outside influence was improperly brought to bear on juror 3) mistake on verdict form 4) whether a juror made a clear statemetn that they relied on racial stereotypes or animus to convict a criminal d –> must be a significant motivating factor
dead man acts (state law civil cases)
an interested person or their predecessor in interest is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the rep or successors in interest of the deceased
will apply under erie in diversity case
safeguards against abuse - adverse partys options for present recollection revived
when a witness has used testimony to refresh memory while on the stand, the adverse party is entitled to:
-have writing produced at trial
-cross examine the witness about the writing and
-introduce portions of the writing relating to witness’s testimony into evidence
*if in a criminal trial the prosecution fails to produce or deliver writing as ordered, judge must strike the witness’s testimony and if justice requires declare a mistrial (for civil, judge can issue any appropriate order)
Note - if iwtness refreshed mem before taking stand, only get above if j
proper factual basis for an xpert witness
unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination but may need to disclose upon cross exam
can rely on:
-acts based on experts own personal observation
-facts made known to expert at trial
-facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field (such facts need not be admissible as evidence, but if they would be admissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in hlping the jury evaluate the experts opionin substantially outweighs their prejudicial effect )
Use of learned treatises by an expert witness
can be used as during testimony, substantive evidence or to impeach experts
-treatise must be established as reliable authority by 1) the testimony of the expert on the stand 2) the testimony of another expert or 3) judicial notice
-excerpt must be used in the context of expert testimony AND
-excerpt is read into evidence but cnanot be received as an exhibit
court may appoint experts!
has broad discretion to appoint an expert witness - on a partys motion or its own the court may order the parties to show cause why experts sholdtn be appointed etc. see more on page 43 of CMR
exclusion and sequestration of a witness
upon a partys request judge must order witnesses excluded from the court room, can also do this on their own motion. judge cant exclude:
-a party or designated officer or employee of a party
2) a person whose presence is essential to presenation of a partys claim or
3) a person statutorily authorized to be present
can the court call its own witnesses?
Yes - each party is entitled to cross examine a witness called by the court - a party may object to the courts examining or calling a witness either at that time or at the next available opportunity when the jury is not present
exceptions to rule against bolstering
a party may offer evidence that the witness made a timely complaint (in a sexual assault case for example) or a prior statement of id
these r wrong answer choices
common law traditional rules prohibiting ur own witness unless
they were hostile/uncooperative, u were required to call that party by law, or the witness gave surprise testimony that is affirmatiely harmful to the party calling them
foundation for prior inconsistent statement extrinsic evidence
witness must be given an opportunity to explain or deny the statement AND the adverse party is given an opportunity to examine the witness about the statement
EXCEPTION to foundation requirement - doesnt apply if prior inconsistent statemetn is an opposing partys statement
-remember that a prior inconsistent statemetn by a hearsay declarant can be used to impeach the hearsay declarant despite lack of foundation
before or after doesnt matter
impeachment by sensory deficiencies
-no foundation requirement
-can be impeached on cross exam or by extrinsic evidence
impeachment by contradictory facts
can ask them about a fact and see if they admit to mistake or lie
-if witness sticks to their story can use extrinsic evidence unnless the contradictory fact is collateral
impeachment by bad acts involving untruthfulness
subject to discretionary control of judges, can be interrogated upon cross of act of misconduct if probative for truthfulness - mut have good faith basis to believe witness committed the misconduct
-NO extrinsic evidence, only cross exam of the witness, and cross examiner cannot refer to any consequences the witness may have suffered as a result of act
this does NOT include arrests
impeachment of a hearsay declarant
-can be impeached by any impeachment methods mentioned; need not be given op to explain or deny a prior inconsistent statement
remember a hearsay declarant means a person whose out of court statement has been admitted into evidence 1) under an exception to the hearsay rule or 2) as a vicarious statement of an opposing party
rehabilitation of W - good character for truthfulness
if rep for good character was attacked, other witnesses may be called to give rep or opinion testimony about their good character
-cant testify about specific acts of truthful conduct by the impeached witness
rehab of w by prior CONSISTENT statement
admissible for
1) if testimony of witness has been attacked by an express or implied charge that the w is lying or exaggerating because of some motive, can intro statement made by witness before onset of alleged motive
2) if witness testimony is impeachd on some different charge (like faulty memory or inconsistency) counsel may intro prior consistent statement to rehab credibility
statement is also admissible as substantive evidence of truth of content
