Witnesses Flashcards
Competency of witnesses generally
Witnesses must pass tests of basic reliability to establish their competency to give testimony
- but they are generally presumed to be competent until the contrary is established
2 FRE limitations
Federal rules of competency
The rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations
- evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify, and
- the witness must give an oath or affirmation to testify truthfully
The interpreter must be qualified and take an oath to make a true translation
Common law qualifications for witnesses - no longer needed
Federal rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the law suit
Children - competency
The competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge
Insanity - competency
An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately
Judge and jurors - competency as witness
The presiding judge may not testify as a witness
Juror are incompetent to testify before the jury in which they are sitting
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote
- the court may not receive evidence of a juror’s statement on such matters
- however, certain things juror can testify about
Jury testifying - inquiry into verdict or indictment
A juror may testify as to
- whether any extraneous prejudicial information was improperly brought to the jury’s attention
- whether any outside influence was improperly brought to bear on any juror
- whether there is a mistake on the verdict form, or
- whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant - racial animus was a significant motivating factor in the juror’s vote to convict
Dead man acts
Ordinarily, witness is not disqualified merely because they have an interest in the outcome of the litigation
But some states have dead mans acts
- statutes that provide that in a civil case, an interested person (or predecessor) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased
A person is interested if they stand to gain or lose by the judgment, or if they judgment may be used for or against them in a subsequent action
Not in the federal rules but will apply in federal cases where state law provides the rules for the decision (diversity)
Judges control over examining witnesses
Federal rules state that the judge should exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment
Judge ultimately has discretion
Leading questions
Questions that suggest the desired answer
Generally allowed only on cross-examination and are not permitted on direct
But the court will ordinarily allow leading questions on direct in following circumstances
- to elicit preliminary or introductory matter
- when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness, or
- when the witness is hostile, an adverse party, or a witness affiliated with an adverse party
Scope of cross-examination
A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion
Generally limited to
- scope of direct examination, including all reasonable inferences that may be drawn from it, and
- matters that test the credibility of the witness
Improper questions and answers
Improper and not permitted:
- questions that are misleading
- compound
- argumentative
- conclusionary
- cumulative
- unduly harassing or embarrassing
- call for a narrative answer or speculation, or
- assume facts not in evidence
Answers that lack foundation and are non responsive may be stricken
Refreshing recollection
A witness may use any writing or object for the purpose of refreshing their present recollection
- memory fails
- show writing to witness
- set aside
- refreshed memory
Usually may not read from the writing while testifying because not authenticated and not in evidence
Safeguards for refreshing recollection
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to
- have the writing produced at trial
- cross-examine the witness about the writing, and
- introduce portions of the writing relating to the witness’s testimony into evidence
If witness refreshed memory before taking the stand, adverse party is entitled to the above options only if the court decides that justice requires it
Safeguards for refreshing recollection - failure to produce in criminal
In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony
And if justice requires, declare a mistrial
If defendant fails, judge has more discretion
Recorded recollection
Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid
Foundation must include proof that
- the witness has insufficient recollection to testify fully and accurately (showing doc fails to jog memory)
- witness had personal knowledge of the facts in the record when the record was made
- the record was made by the witness or under their direction, or adopted by the witness
- the record was made when the matter was fresh in the witness’s mind, and
- record accurately reflects the witness’s knowledge (witness vouches for the accuracy of the record at the time that it was made or adopted)
Cannot be admitted into evidence as an exhibit unless offered by adverse party
- read into evidence
Opinion testimony generally
The general policy is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful
Opinion testimony - lay witnesses
Opinions by lay witnesses are generally inadmissible
- but many cases where no better evidence can be obtained
Opinion testimony is admissible when it is
- rationally based on the witness’s perception
- helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue, and
- not based on scientific, technical, or other specialized knowledge
Situations where opinions of lay witnesses are admissible (7)
Generally admissible with respect to
- the general appearance or condition of a person
- the state of emotion of a person
- matters involving sense recognition
- voice or handwriting identification
- the speed of a moving object
- the value of the witness’s own services or property
- the rational or irrational nature of another’s conduct, and
- a person’s intoxication
Situations where opinions of lay witnesses are not admissible
A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made because legal conclusions that require specialized knowledge
Can only testify to the surrounding facts
Requirements for admissibility of opinion testimony by expert witnesses
For expert testimony to be admissible, must demonstrate to court that it is more likely than not that
- the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact
- opinion is based on sufficient facts or data
- opinion is the product of reliable principles and methods, and
- the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case
Qualifying one as an expert
The witness must be qualified as an expert
Satisfied if they possess special knowledge, skill, experience, training, or education
Experts opinion and proper factual basis
The expert’s opinion must be supported by a proper factual basis
Opinion can be based on any of the following 3 possible sources of information
- facts based on the expert’s own personal observation
- facts made known to the 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
Expert factual basis not known personally, but supplied - admissibility of underlying facts
Expert testimony is based on facts not known personally but supplied to the expert outside of the courtroom and of a type reasonably relied upon by other experts in the particular field
These facts do not need to be admissible as evidence
- but if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (reverse 403)
