Witnesses

Question 1

Competency of witnesses generally

Answer 1

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

Question 2

Federal rules of competency

Answer 2

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

Question 3

Common law qualifications for witnesses - no longer needed

Answer 3

Federal rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the law suit

Question 4

Children - competency

Answer 4

The competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge

Question 5

Insanity - competency

Answer 5

An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately

Question 6

Judge and jurors - competency as witness

Answer 6

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

Question 7

Jury testifying - inquiry into verdict or indictment

Answer 7

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

Question 8

Dead man acts

Answer 8

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)

Question 9

Judges control over examining witnesses

Answer 9

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

Question 10

Leading questions

Answer 10

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

Question 11

Scope of cross-examination

Answer 11

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

Question 12

Improper questions and answers

Answer 12

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

Question 13

Refreshing recollection

Answer 13

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

Question 14

Safeguards for refreshing recollection

Answer 14

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

Question 15

Safeguards for refreshing recollection - failure to produce in criminal

Answer 15

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

Question 16

Recorded recollection

Answer 16

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

Question 17

Opinion testimony generally

Answer 17

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

Question 18

Opinion testimony - lay witnesses

Answer 18

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

Question 19

Situations where opinions of lay witnesses are admissible (7)

Answer 19

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

Question 20

Situations where opinions of lay witnesses are not admissible

Answer 20

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

Question 21

Requirements for admissibility of opinion testimony by expert witnesses

Answer 21

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

Question 22

Qualifying one as an expert

Answer 22

The witness must be qualified as an expert

Satisfied if they possess special knowledge, skill, experience, training, or education

Question 23

Experts opinion and proper factual basis

Answer 23

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

Question 24

Expert factual basis not known personally, but supplied - admissibility of underlying facts

Answer 24

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)

Question 25

Expert disclosing basis of opinion

Answer 25

Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination

The expert may be required to disclose such information on cross-examination

Question 26

Expert’s opinion and probability

Answer 26

The expert must possess reasonable probability regarding their opinion

A mere guess or speculation is not sufficient

Question 27

Reliability of expert opinion - judges job (Daubert)

Answer 27

Federal courts determine the reliability of all expert testimony

Courts have discretion to consider a wide variety of factors in making this determination, but 4 principal Daubert factors that courts use to determine the reliability of experts’ principles and methodologies
- Testing of principle or methodology
- rate of error
- acceptance by experts in the same discipline
- peer review and publication

Question 28

Use of learned treatises during examination

Answer 28

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony

Learned treatises can be used not only to impeach, but also as substantive evidence under learned treatise exception to hearsay rule, but
- the treatise must be established as reliable authority by the testimony of the expert on the stand, the testimony of another expert, or judicial notice
- excerpt must be used in the context of expert testimony (called to attention on cross, or relied upon during direct), and
- the excerpt is read into evidence but cannot be received as an exhibit

Question 29

Expert opinion on ultimate issues

Answer 29

An expert is generally permitted to Redner an opinion as to the ultimate issue in the case

However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue

Question 30

Court-appointed experts

Answer 30

Court has broad discretion to appoint expert witnesses, but rule does not limit any party’s right to call its own expert

Partys motion or its own, court may order parties to show cause why experts should not be appointed and may ask parties to submit nominations
- may then appoint any expert who consents and court must inform expert of their duties
- expert must advise the parties of any findings they make and any party may depose, call expert as witness, or cross-examine

Expert is entitled to reasonable compensation

Court may authorize disclosure to the jury that the expert was appointed by the court

Question 31

Exclusion and sequestration of witnesses

Answer 31

Upon a party’s request, trial judge must order witnesses excluded from the courtroom
- judge can do on own motion as well

But can never exclude
- party or a designated officer or employee of a party
- a person whose presence is essential to the presentation of a party’s claim or defense, or
- a person statutorily authorized to be present

Court my also issue an order prohibiting disclosure of trial testimony to excluded witnesses and prohibiting the excluded witnesses from accessing trial testimony

Question 32

Witnesses called or examined by the court

Answer 32

The court may examine a party’s witness or call its own witness
- each party is entitled to cross

A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when jury is not present