Witnesses

Question 1

Competency of Witnesses

Answer 1

• 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

Question 2

Fed Rules of Competency

Answer 2

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

Question 3

Reminder Re Fed Rules of Competency + Personal Knowledge

Answer 3

• proof of personal knowledge may consist of W’s own testimony

Question 4

Fed Rules of Competency - Interpreters

Answer 4

• if W requires an interpreter, interpreter must be qualified + take an oath to make a true translation

Question 5

Modern Modifications of Common Law Disqualifications

Answer 5

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

Question 6

Competency - Children

Answer 6

• case-by-case determination
• depends on capacity + intelligence of particular child as determined by the trial judge

Question 7

Competency - Insanity

Answer 7

• insane person may testify provided that:
  -> they understand the ob to speak truthfully +
  -> have the capacity to testify accurately

Question 8

Competency to Testify - Judge + Jurors

Answer 8

• presiding judge can’t testify as a witness
• jurors are incompetent to testify before the jury in which they’re sitting

Question 9

Competency to Testify - Jurors + Inquiry into Verdict or Indictment

Answer 9

• 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

Question 10

Inquiry into Verdict or Indictment - Things Juror May Testify To

Answer 10

• 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

Question 11

Inquiry into Verdict or Indictment - Racial Stereotypes or Animus

Answer 11

• 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

Question 12

Dead Man Acts

Answer 12

• 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

Question 13

Form of Questioning - Overview

Answer 13

• 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

Question 14

Leading Questions - General Rule

Answer 14

• questions that suggest the desired answer
• generally only allowed on cross
  -> generally not permitted on direct

Question 15

Leading Questions - When Allowed on Direct

Answer 15

• 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

Question 16

Scope of Cross-Examination

Answer 16

• 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

Question 17

Improper Q’s

Answer 17

• 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

Question 18

Improper Answers

Answer 18

• answers that lack foundation (w has insufficient personal knowledge)
• answers that are nonresponsive (don’t answer the specific q asked

-> may be stricken

Question 19

Use of Docs to Aid Oral Testimony - Overview

Answer 19

• 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

Question 20

Present Recollection Refreshed - General Concept

Answer 20

• 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)

Question 21

Present Recollection Refreshed - Adverse Party’s Options While W On Stand

Answer 21

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

Question 22

Present Recollection Refreshed - Adverse Party’s Options Before W On Stand

Answer 22

• If w refreshed memory before taking stand, adverse party is entitled to above options only if court decides justice requires it

Question 23

Present Recollection Refreshed - Failure to Produce or Deliver Writing

Answer 23

• 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”

Question 24

Past Recollection Recorded - Overview

Answer 24

• 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

Question 25

Past Recollection Recorded - Requirements for Foundation

Answer 25

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