Witnesses Flashcards
Competency of Witnesses
- witnesses muss pass tests of basic reliability to establish their competency to give testimony
- BUT generally presumed to be competent until the contrary is established
Fed Rules of Competency
2 limitations:
- must be ev suff to support a finding that the witness has personal knowledge of the matter about which they are to testify AND
- witness must give an oath or affirmation to testify truthfully
- no special moral or mental qualifications beyond this
Reminder Re Fed Rules of Competency + Personal Knowledge
- proof of personal knowledge may consist of W’s own testimony
Fed Rules of Competency - Interpreters
- if W requires an interpreter, interpreter must be qualified + take an oath to make a true translation
Modern Modifications of Common Law Disqualifications
Fed rules have removed common law W disqualifications for:
- lack of religious belief
- conviction of a crime
- interest in the lawsuit
-> means they don’t affect competency
Competency - Children
- case-by-case determination
- depends on capacity + intelligence of particular child as determined by the trial judge
Competency - Insanity
- insane person may testify provided that:
-> they understand the ob to speak truthfully +
-> have the capacity to testify accurately
Competency to Testify - Judge + Jurors
- presiding judge can’t testify as a witness
- jurors are incompetent to testify before the jury in which they’re sitting
Competency to Testify - Jurors + Inquiry into Verdict or Indictment
- during inquiry into validity of verdict or indictment, juror generally prohibited from testifying re what occurred during deliberations or anything that may have affected a juror’s vote
- court also can’t receive ev of a juror’s statement on such matters
Inquiry into Verdict or Indictment - Things Juror May Testify To
- whether any extraneous prejudicial info was improperly brought to jury’s attention
- whether any outside influence was improperly brought to bear on any juror
- whether there’s a mistake on the verdict form OR
- whether any juror made a clear statement that they relied on racial stereotypes or animus to convict crim def
Inquiry into Verdict or Indictment - Racial Stereotypes or Animus
- can testify to this to allow ct to determine whether 6th Am right to jury trial was violated
- not every comment indicating racial bias will qualify
-> ct must find that racial animus was a significant motivating factor in juror’s vote to convict
Dead Man Acts
- witness ordinarily NOT dq’ed merely b/c have outcome in interest of the litigation
- BUT some states have Dead Man Acts -> provide that in CIVIL case, an interested person (or predecessor in interest) is incompetent to testify to a personal transaction or communication w/ the deceased when such testimony is offered against the rep or successors in interest of the deceased
-> person = “interested if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action
-> NOT in fed rules
Form of Questioning - Overview
- judge has ultimate discretion to control questioning
- Fed rules states judge should exercise reasonable control over examination of w’s in order to:
-> aid ascertainment of truth
-> avoid wasting time +
-> protect w’s from harassment
Leading Questions - General Rule
- questions that suggest the desired answer
- generally only allowed on cross
-> generally not permitted on direct
Leading Questions - When Allowed on Direct
- to elicit preliminary or introductory matter
- when w needs help responding b/c of loss of memory, immaturity, or physical or mental weakness OR
- when w hostile, an adverse party, or w affiliated w/ an adverse party
Scope of Cross-Examination
- party has a right to cross-examine any opposing w’s, but scope frequently a matter of judicial discretion
- generally limited to:
-> scope of direct (including all reasonable inferences that may be drawn from it) AND
-> matters that test the credibility of the witness
Improper Q’s
- q’s that are misleading (can’t be answered w/o making an unintended admission
- compound q’s (requiring a single answer to more than one q)
- argumentative
- conclusionary
- cumulative
- unduly harassing or embarrassing
- call for a narrative answer or speculation
- assume facts not in evidence
-> improper q’s are not permitted
Improper Answers
- answers that lack foundation (w has insufficient personal knowledge)
- answers that are nonresponsive (don’t answer the specific q asked
-> may be stricken
Use of Docs to Aid Oral Testimony - Overview
- w generally can’t read their testimony from a prepared memorandum
-> must testify on basis of their current recollection - memorandum or other record may be used under certain circumstances
Present Recollection Refreshed - General Concept
- w may use any writing or object to refresh present recollection
- usually may not read from the writing while testifying
-> b/c the writing isn’t authenticated + isn’t in evidence (thus no hearsay concern)
Present Recollection Refreshed - Adverse Party’s Options While W On Stand
When w has used writing to refresh memory while on stand, adverse party is entitled to:
- have the writing produced at trial
- cross-examine the w about the writing AND
- introduce portions of the writing relating to the w’s testimony into ev
Present Recollection Refreshed - Adverse Party’s Options Before W On Stand
- If w refreshed memory before taking stand, adverse party is entitled to above options only if court decides justice requires it
Present Recollection Refreshed - Failure to Produce or Deliver Writing
- in crim case, if prosecution fails to produce or deliver writing as ordered, judge must strike w’s testimony
-> must also declare a mistrial if justice requires - when defense of party in a civil case fails to comply, judge has more discretion -> can issue “any appropriate order”
Past Recollection Recorded - Overview
- where w states that they have insufficient recollection of an event to enable them to testify fully + accurately, even after they’ve consulted memorandum or other record given to them on the stand, the record itself may be read into ev if a proper foundation is laid
- CAN’T be admitted into evidence though unless offered by an adverse party
Past Recollection Recorded - Requirements for Foundation
Need proof that:
- w has insufficient recollection to testify fully and accurately (i.e. showing doc to w fails to jog their memory)
- w had personal knowledge of the facts in the record when the record was made
- record was made by w or under their direction, or it was adopted by the w
- record was made when the matter was fresh in w’s mind
- record accurately reflects w’s knowledge
-> i.e. even though w can’t currently remember the facts, this req is satisfied where w vouches for accuracy of the record at the time it was made or adopted
