Witnesses Flashcards
Witness Eligibility (three requirements)
Witness must be COMPETENT (Rule 601)
○ Witness must have PERSONAL KNOWLEDGE (Rule 602)
○ Witness must take an OATH to testify truthfully (Rule 603)
Rule 601 competency to testify in general
Every person is competent to be a witness unless these rules provide otherwise (recalling, communicating, understanding). But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
Cross examination is tool to test competency
Rule 602 Personal Knowledge Requirement
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
McCrary-El v. Shaw
Could only see the action through crack of door (not enough)
Rule of Law
Under Federal Rule of Evidence 602, a witness may not testify to a matter unless he has personal knowledge of the matter
Rule 603 Oath or Affirmation requirement
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Mentally incapacitated
United States v. Roach: 601 is a low threshold
Rule of Law
A trial court has broad discretion in determining whether to order a psychiatric evaluation of a witness for competency purposes.
Facts
Beacher Roach (defendant) was charged with robbing a bank. Brenda Jackson drove the getaway car during the robbery. The prosecution sought to call Jackson as a witness at Roach’s trial. However, Jackson had been emotionally troubled and used drugs in the months leading up to the trial. Approximately three months before trial, Jackson had received a psychiatric evaluation and been deemed competent to stand trial for her role in the robbery. Roach requested an additional competency hearing to determine whether Jackson was competent to testify as a witness. The district court conducted a preliminary hearing on Jackson’s competency. Although the judge did not ask any questions, Jackson was lucid and responsive to questions from both parties’ attorneys. The district court found Jackson competent to be a witness. Jackson testified at Roach’s trial, and the jury convicted Roach. Roach appealed, arguing that the determination of Jackson’s competency was inadequate. Roach claimed that a full psychiatric evaluation was necessary.
Issue
Does a trial court have broad discretion in determining whether to order a psychiatric evaluation of a witness for competency purposes?
Holding and Reasoning (Gee, J.)
affirmed
Child (Wheeler v. US)
Rule of Law
A child witness is competent to testify if he has sufficient knowledge of the nature and consequences of an oath to tell the truth. No bright line age. Case by case basis.
Previously Hypnotized (Rock v. arkansas)
Rule of Law
A rule prohibiting the admission of hypnotically refreshed testimony violates a criminal defendant’s constitutional right to testify on her own behalf.
Facts
Vickie Rock (defendant) was charged with manslaughter in the shooting death of her husband. The incident stemmed from an argument between the two that became physical. At first, Rock could not recall the exact circumstances that led to the shooting. However, after being hypnotized by Dr. Back, Rock recalled that she had never pulled the trigger, but the gun had accidentally discharged when her husband grabbed her arm during the fight. The trial court listened to a recording of the hypnosis and determined that Dr. Back was objective and did not ask Rock leading questions during the hypnosis. Additionally, an inspection of the gun indicated that it was defective and had a tendency to go off without the trigger being pulled. Rock sought to testify to her post-hypnosis recollection about the incident at trial. However, the trial court excluded all of Rock’s testimony to recollections she had after the hypnosis and limited her testimony to what she had recalled prior to the hypnosis, which was recorded in the hypnotist’s pre-hypnosis notes. As a result of this exclusion, the trial court convicted Rock. The Supreme Court of Arkansas affirmed. The United States Supreme Court granted certiorari to consider the constitutionality of Arkansas’ per se prohibition on admitting a criminal defendant’s hypnotically refreshed testimony.
Issue
Does a rule prohibiting the admission of hypnotically refreshed testimony violate a criminal defendant’s constitutional right to testify on her own behalf?
Holding and Reasoning (Blackmun, J.)
Safeguards: corroborating evidence, expert witnesses, cross-examination, no leading questions in hypnosis
Rule 605: Judge competency
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. (no exceptions)
Rule 606: Juror’s competency
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment. (if internal can’t do anything)
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
Exceptions to 606 Juror Competency
Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
D) Pena Rodriguez v. Colorado: when a juror makes express statements regarding racial animus and overt bias or stereotypes to convict a criminal defendant and bias was a significant factor is convicting them
Rule 611 Mode and Order of presenting and examining
***(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct
examination and matters affecting the witness’s credibility. The court may allow inquiry into additional
matters as if on direct examination.
Credibility of witness is always within scope**
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to
develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
Rule 612: Writing used to refresh witness memory
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest
be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.
Doty v. Elias
Rule of Law
Under Federal Rule of Evidence 612, a witness may use a writing to refresh his memory if the witness is able to testify from present knowledge after referring to the writing.
Facts
Becky Doty and other employees (plaintiffs) worked at a restaurant owned by Eddy Elias (defendant). Elias did not pay hourly wages to the plaintiffs, but allowed them to keep all of their tips from customers. The plaintiffs brought suit against Elias, alleging that this practice violated federal labor laws. Prior to trial, the plaintiffs each compiled, from memory, schedules of the days and times the plaintiffs had worked at the restaurant. The plaintiffs did not introduce these schedules into evidence. During trial, the judge permitted the plaintiffs to refer to their recreated work schedules while testifying. The district court found that Elias violated federal labor laws. Elias appealed, arguing that the plaintiffs’ use of the recreated work schedules during their testimony constituted inadmissible hearsay.
611: Direct Examination
Leading Questions. Leading questions should not be used on direct
examination except as necessary to develop the witness’ testimony. Ordinarily, the court should
allowed leading questions:
(1) On cross examination, and
(2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse
party
● Hostile witness → combative with the attorney
● Adverse party → the opposing party on stand
● Id. with Adverse Party → employee of the Δ, ect.
611 Cross
Scope of Cross-Examination. Cross examination should not go
beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
Attack their credibility by…
■ Perception/Personal Knowledge→ ask questions that highlight their perspective wasn’t as clear
■ Recall → highlight the gaps in their memory and not consistent answers from deposition to stand
■ Communication → are they being confused to the jury and/or providing an illogical story
■ Truthfulness/Veracity → highlight that there is bias and contradictory response
