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Evidence > Witnesses > Flashcards

Witnesses Flashcards

1
Q

What are witnesses presumed to be?

A

Competent.

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2
Q

What are the two limitations on the witnesses presumption of competency?

A

1) Personal knowledge about what they’re testifying
2) Witness must give oath/affirmation to testify truthfully

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3
Q

How much evidence is needed to establish a witness has personal knowledge about what they are testifying?

A

A sufficient amount of evidence.

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4
Q

How can a witness’s personal knowledge about the topic their testifying be proven?

A

Their own testimony.

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5
Q

What oath must an interpreter take if a witness need one?

A

Then that interpreter must be:
1) qualified to take an oath
2) to make a true translation

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6
Q

Must an interpreter take an oath?

A

Yes.

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7
Q

What common law witness disqualifications have been removed from FRE?

A

1) lack of religious belief
2) conviction of a crime
3) interest in the law suit.

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8
Q

What does it mean when common law witness disqualifications have been disqualified?

A

They do not effect witness competency.

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9
Q

What does the competency of a child witness depend on?

A

Capacity and intelligence of a particular child.

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10
Q

Who determines if a child witness is competent?

A

The judge.

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11
Q

Can an insane person testify?

A

Yes, provided:
1) they understand the obligation to speak truthfully
2) have capacity to testify accurately

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12
Q

Can a judge testify?

A

Not as a witness.

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13
Q

Can a juror testify?

A

Not before the jury in which they are sitting.

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14
Q

During an inquiry into the validity of a verdict or indictment, can a juror testify?

A

They can.

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15
Q

During an inquiry into the validity of a verdict or indictment, can’t a juror testify?

A

They are generally prohibited from testifying:
1) about what occurred during deliberations
2)things that affected a juror’s vote.

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16
Q

During an inquiry into the validity of a verdict or indictment, what can a juror testify about?

A

Whether:
1) any extraneous prejudicial information was brought to jury’s attion
2) Whether outside influence was improperly exerted on them
3) Where there is a mistake on the verdict form
4) Whether a juror made a CLEAR statement that they replied on racial stereotypes/Animus to convict a criminal defendant

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17
Q

If a juror made a statement that they replied on racial stereotypes/Animus, what attribute must it be?

A

Clear.

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18
Q

If a juror made a statement that they replied on racial stereotypes/Animus, what type of trial must be at hand?

A

A criminal trial.

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19
Q

What is the rationale for allowing evidence that a juror made a statement that they relied on racial stereotypes/Animus?

A

Allows the court to determine whether:
1) Defendant’s 6th ammend. right to a a jury trial was violated.

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20
Q

What must a court find to find a violation of the D’s 6th amend right to a jury trial if a juror made a statement that they relied on racial stereotypes/Animus?

A

That racial animus was:
1) a SIGNIFICANT
2) MOTIVATING factor

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21
Q

What is a Dead Man Act?

A

State law in certain places
2) in a CIVIL case
3) an interested person/or predecessor in interest
4) is incompetent to testift
5) to a personal transaction/communication with the deceased
6) when such testimony is offered against a representative successor of interest

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22
Q

When is a person interested for dead Man statute purposes?

A

1) If they stand to gain OR lose by the judgement.
OR
2) If the judgement could be used against them in a subsequent action

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23
Q

Is there a Dead Man Act in federal Rules?

A

No.

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24
Q

When will a dead Man Act apply in federal cases?

A

Under Erie, when state law provides the rule of decision.

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25
Q

What type of case will usually implicate a dead Man Act to apply in federal cases?

A

Diversity cases

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26
Q

How should a judge manage the questioning of a witness?

A

They should:
1) exercise REASONABLE control
2) to aid in ascertainment of truth
3) to avoid wasting time
4) to protect witnesses from harassment.

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27
Q

Who has the final say on whether a jury has been improperly questioned?

A

It’s up to the judge’s discretion.

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28
Q

What are leading questions?

A

Questions that suggest desired answer.

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29
Q

When are leading questions allowed generally?

A

Generally on cross examination.

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30
Q

When will the court allow leading questions on direct?

A

To elicit preliminary/introductory matter
When witness needs help responding because of loss of memory/immaturity/physical/mental weakness
3) When witness is hostile or an adverse party or a witness affiliated with a hostile party.

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31
Q

Does a party have a right to cross an opposing witness?

A

Yes

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32
Q

What is the scope of cross exam frequently bounded by?

A

Judicial discretion

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33
Q

What is cross generally limited to?

A

1) Scope of direct examination and reasonable inferences drawn from it
2) MAtter that test credibility of witness (impeachment)

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34
Q

What types of questions are improper

A

Misleading
2) compound
3) argumentative
4) conclusionary
5) cumulative
6) unduly harassing
7) Call for narrative answer/speculation
8) assume facts not in evidence

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35
Q

What types of answers are improper?

A

Those that lack foundation, are nonreponsive.

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36
Q

What does it mean that a witness’s answer lacks foundation?

A

Witness has insufficient personal knowledge

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37
Q

What does it mean that a witness’s answer are non responsive?

A

It does not answer specific question.

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38
Q

If a witness’s answer lacks foundation or is non responsive, what does judge have discretion to do?

A

Strike the answer.

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39
Q

What does a misleading question mean?

A

Cannot be answered without making an unintended admission

40
Q

What is a compound question?

A

Requires single answer to more than one question.

41
Q

Generally, can a witness read from a prepared memory while testifying?

A

No.

42
Q

What must a witness generally testify from?

A

They must testify on basis of CURRENT RECOLLECTION

43
Q

Can a witness refresh their present recollections?

A

Yes.

44
Q

What can a witness use to refresh their present recollections?

A

Any writing or object.

45
Q

Why can’t a witness usually read from a writing while testifying?

A

The writing is
1) not authenticated
2) and not in evidence.

46
Q

If a witness has used a writing to refresh their memory while testifying, what can opposing party do?

A

1) have writing produced at trial
2) cross examine witness about writing
3) introduce portions of writing relevant to testimony into evidence

47
Q

If a witness has used a writing to refresh their memory before taking the stand, what are options available to opposing party?

A

Same options, but only able to pursue if Judge decides that justice requires allowing it.

48
Q

If a prosecutor in a criminal case fails to produce a writing that witness relied on for reflecting recollection, what must the judge do?

A

Judge:
1) MUST STRIKE witness testimony.

AND

2) If justice requires it, declare a mistrial.

49
Q

If defense in a criminal case fails to produce a writing, what must the judge do?

A

Judge has discretion and can issue any appropriate order.

50
Q

if any party in a civil trial fails to produce a writing, what must the judge do?

A

Judge has discretion and can issue any appropriate order.

51
Q

IF a witness states they still can’t remember event after refreshing memory on stand, what can a proponent do?

A

The record itself MAY be read into evidence
1) if a proper foundation is laid.

52
Q

What proof must a proper foundation have? HIGHLY TESTED

A

1) W has insufficient recollection after being refreshed
2) W had personal knowledge of facts in record when record made
3) Record was MADE BY WITNESS or under their direction, or was ADOPTED by them
4) Record was made WHEN MATTER WAS FRESH in w’s mind
5) Record accurately reflects witness’s knowledge

53
Q

For proof of a proper foundation, what does it mean that a record accurately reflects witness’s knowledge?

A

1) Though the witness can’t currently remember it,
2) it’s satisfied if witness vouches for accuracy of record
3) at time it was made or adopted.

54
Q

If a witness can’t recollect a record after being refreshed, what happens to the record?

A

If a foundation with proper proof is made, RECORD IS READ INTO EVIDENCE AND HEARD BY JURY.

55
Q

If a witness can’t recollect a record after being refreshed, what does cannot happen to the record? What is rationale for this? HIGHLY TESTED

A

IT cannot:
1) be admitted into evidence
2) as an exhibit
3) unless offered by ADVERSE party

Don’t want jury giving the record undue weight – the record is a substitute for witness testimony and nothing more.

56
Q

What writings/photos Etc can be used to refresh W present recollection?

A

Any writing.

57
Q

If a witness is having their present recollection refreshed, what can’t they do?

A

Read from the writing while testifying.

58
Q

What is the hearsay issue that must be overcome with present recollection writings?

A

No hear say issue, because writing is not offered into evidence.

59
Q

What can be used as a recorded recollection?

A

Only a record that meets foundational proof requirements. (timely made by W, w can’t remember events after reading record).

60
Q

If a proper foundation is laid, what happens to the record?

A

It is read into evidence.

61
Q

When is a recorded recollection record admitted into evidence?

A

When offered by adverse party.

62
Q

How does recorded recollection get around hearsay?

A

It doesn’t – it is hearsay, but falls within an exception.

63
Q

What is the general policy about opinion evidence?

A

It’s admission is prohibited except in cases:
where courts are sure it’s
1) neccessary
OR
2) at least helpful

64
Q

What is the general rule about opinon testimony of lay/non expert witnesses?

A

Generally, they are inadmissible.

65
Q

When is lay/non expert witness opinion testimony admissible?

A

When no better evidence can be obtained and the opinion is:
1) rationally based on witness’s perception
2) helpful to clear understanding of w/testimony
OR
3) helpful to a determination of a fact in issue
4) Not based on specialized knowledge

66
Q

What can’t a lay witness give opinions on?

A

Specialized knowledge

67
Q

What are 8 areas of acceptable admissible opinions?

A

1) General appearance/condition of a person
2) State of emotion
3) Matters involving sense recognition
4) Voice/handwriting ID
5) speed of moving object
6) value of own services
7) rational or irrational nature of another’s conduct
8) intoxication

68
Q

What can’t an lay witness give opinion on?

A

Matters of legal conclusions.

69
Q

What is an example of matters of legal conclusion?

A

1) Whether W acted as an AGENT
2) whether a CONTRACT was made

70
Q

What are the requirements for expert witness testimony?

A

1) subject matter is one where scientific, technical, or otherwise specialized knowledge would assist trier of fact
2) opinion is based on sufficient facts/data
3) opinion is a product of reliable principles/methods
4) expert’s opinion reflects reliable application of principles/methods to facts of case

71
Q

What must a proponent show to the court for an expert witness to be admitted?

A

It’s more likely than not

72
Q

How does a witness get qualified to be an expert?

A

If they possess:
1) specialized knowledge
2) skill
3) experience
4) training
OR
5) education

73
Q

What proper factual basis can an expert’s testimony be based on?

A

1) Personal observations
2) Facts made known to expert at trial
3) facts not personally known to the expert but are supplied to the expert outside of the court room

74
Q

What does it mean when an expert’s testimony’s proper factual basis is based on facts made known to the expert at trial?

A

1) The expert reviews testimony from the trial
OR
2) counsel relates facts to expert on direct examination in the form of a hypothetical question

75
Q

If an expert’s testimony is based on facts made known to them at trial by a counsel on direct examination, how must the counsel express the question to the expert?

A

In the form of a hypothetical question

76
Q

If facts are not known personally to an expert but are supplied to them at trial, what type of facts must they be?

A

Facts reasonably relied upon by experts in their particular field.

77
Q

If facts are not known personally to an expert but are supplied to them at trial, do they have to be admissible?

A

No, they need not be admissible BUT

78
Q

If facts are not known personally to an expert but are supplied to them at trial, and those facts would be inadmissible, when can the proponent of the expert testimony to the jury?

A

Until the court runs a reverse 403 balancing test.

79
Q

If facts are not known personally to an expert but are supplied to them at trial, what is the balancing test the facts must go through? What is the presumption of the facts?

A

They must go through a reverse 403 balancing.
Test: The facts probative value in helping jury evaluate expert opinion
SUBSTANTIALLY OUTWEIGHS
The facts prejudiicial effect.

This test favors non disclosure of the facts.

80
Q

On direct examination, must an expert disclose the basis of their opinion?

A

No, unless the court orders other wise.

81
Q

On cross examination, must an expert disclose the basis of their opinion?

A

Possibly.

82
Q

What level of certainty must an expert have about their opinions?

A

A reasonable probability.

83
Q

Who determines if an expert testimony is reliable?

A

Federal judges.

84
Q

What do judges consider when determining expert testimony reliability?

A

The Daubert Factors.

1) Testing of principle or methodology
2) Rate of error
3) Acceptance by experts in same discipline
4) Peer review and publication.

85
Q

What does TRAP stand for in context of evidence? What is it used in regards to

A

It stands for the factors of the Daubert test.
1) Testing of principle or methodology
2) rate of error
3) acceptance by experts in same discipline
4) peer review and publication

86
Q

During an expert testimony, what can be done with a treatise/periodical? What can they be used for?

A

A relevant excerpt may be used during the expert testimony.

These learned treatises can be used
1) to impeach experts
2) as substantive evidence

87
Q

What does it mean that a learned treatises can be used as substantive evidence?

A

The treatises can be used to prove what they say is true.

88
Q

Is the learned treatises during examination hearsay?

A

Yes, but it falls within an exception.

89
Q

What type of opinion can an expert offer as to the ultimate issue in a case generally?

A

They are generally permitted to render their opinion on it. BUT

90
Q

When can an expert not render their opinion on an ultimate issue in a case?

A

1) In a CRIMINAL CASE
2) Where DEFENDANT’S MENTAL STATE
3) constitutes an ELEMENT OF CRIME OR DEFENSE

91
Q

IN a criminal case, where defendant’s mental state constitutes an ELEMENT of crime or defense, an expert may:

A

NOT offer an opinion as to whether accused did or did not have the mental state at issue

92
Q

When must a trial judge order witnesses excluded from the court room?

A

When a party to the case requests it.

93
Q

When may a judge order witnesses excluded from the court room?

A

On their own motion BUT

94
Q

Who can’t a judge exclude on their own motion?

A

1) a party of designated officer or employee of a party
2) a person whose presence is ESSENTIAL to the presentation of a party’s claim or defense
3) a person statutorily authorized to be present

95
Q
A

Evidence (8 decks)

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