Witnesses Flashcards
Court may excuse a witness if:
The probative value of witness testimony
is outweighed by undue prejudice.
R403
General Competency Rule
Every Person is a competent witness.
challenger has burden to prove a witness is not competent.
Dead Man’s Statute
disqualifies surviving financially interested witness
from testifying about any transaction or conversations with the decedent.
Abandoned by FRE except where Erie Doctrine requires state law to be followed.
Inquiry into validity into a verdict, a juror may not testify about
Any statements made or incident that occurred during deliberations
effect of anything on that juror’s or another juror’s vote
Any juror’s mental processes concerning the verdict
The court may not receive a juror’s affidavit or evidence of a juror’s statements on any of these matters
What a Juror may testify to
- Extraneous prejudicial information improperly brought to the jurors attention.
- An outside influence was improperly brought to bear on any juror.
- A mistake was made entering the verdict on the verdict form.
Oath or Affirmation to testify
A witness must give an oath or affirmation to testify truthfully.
in a form designed to impress that duty on the witness’s conscience.
Examples where jurors testimony will be excluded
misunderstood evidence or the instructions.
reached its verdict improperly (drawing lots)
drank alcohol and smoked marijuana during deliberations
bullied by another juror
fell asleep during deliberations
Who may impeach a witness?
credibility may be attacked by any party,
including the party that called him.
Methods of Impeachment
Bias or Prejudice
Sensory defects
Prior Inconsistent Statements
Character
Impeachment for Bias or Prejudice
Examples
Personal or family hostility or relationship
Business Relationship
Financial Relationship
Fee Arrangement
Character Impeachment - 4 Categories
Reputation or Opinion
Bad Acts
Felony Convictions
Convictions of crimes involving dishonesty or false statement
Witnesses Character for Truthfulness or Untruthfulness
character for untruthfulness is always material
may be attacked by:
- testimony about character for truthfulness or reputation for untruthfulness.
- Opinion testimony about character however, evidence is available where character for truthfulness is attacked.
Is Evidence of bias or interest sufficient to introduce evidence of character for truthfulness to be introduced?
No.
Rule 608(b) Bad Acts Impeachment
instances of conduct probative for truthfulness are admissible for attacking witness credibility
- Must be a question
- On cross examination
- inquire on prior unconvicted acts bearing on truthfullness
ie filing false tax return, forgery, using a fake name, etc.
Elements of Bad Act Impeachment
- A question
- On Cross Examination
- Inquiring into prior Unconvicted acts bearing on truthfulness or dishonesty.
Examples of Prior bad acts having NO bearing on truthfulness
Use of drugs or alcohol
Failure to pay debts
gambling or Prostitution
sexual misconduct
Limitations on questions for Bad Acts Impeachment
- Questions must be probative for truthfulness
- Must be asked in good faith
- Bad acts cannot be too remote in time
- Only questions of fact are allowed, not rumors or arrests
- Judge has discretion to exclude
Witness Lies about Prior Bad Acts
What rule applies and what result
Collateral Matter Rule Applies.
Extrinsic evidence is inadmissible to prove dishonest act.
Examiner is bound by the witness answer.
Impeachment by Evidence of Prior Conviction (Rule 609)
2 Categories
- Felonies - crimes punishable by death or sentence < one year
- Crimes involving dishonesty or false statements - perjury, counterfeiting, larceny by trick, false pretenses, embezzlement, forgery
Felony Convictions used to impeach a witness:
Accused vs any witness other than the accused.
Other than Accused: Rule 403 balancing test - probative value must SUBSTANTIALLY outweigh unfair prejudice. Admission is discretionary.
Accused: Admitted if probative value outweighs prejudicial effect - no need for Substantially outweighing
Impeachment with crimes involving dishonesty or false statement
What crimes are admissible?
Includes felonies and misdemeanors.
Admissible if to 10 years old or less
If crime involves DUF - Deceit, Untruthfulness or Fraud
FRE 609(b) 10 Year Rule
convictions 10 years from date of conviction or release, admissible if
PV SUBSTANTIALLY outweighs PE and
adverse party gets written notice of intent to use
When is Evidence of Juvenile Adjudications Admissible
Will be admissible under Rule 609(d) if:
- offered in a criminal case
- Adjudication was of a witness other than defendant
- adult conviction for that offense would be admissible to attack the adults credibility
- evidence is necessary to fairly determine guilt or innocence.
Non-crimen falsi convictions more than 10 years old
Such convictions are presumptively inadmissible
Evidence of Witness Religious Beliefs
Inadmissible to enhance or impair a witness credibility
Admissibility of convictions under appeal
Convictions under appeal are admissible as is the fact that it is currently under appeal
Admissibility of a conviction that has been pardoned.
Convictions that have been pardoned are not admissible
How can a defendant hide prior convictions
By not testifying.
However, prior convictions will be admissible during sentencing.
Judges control over the examination of witnesses
Court exercise reasonable control over mode and order of examination of witnesses and presenting evidence so as to:
- Make procedures effective for determining truth
- Avoid wasting time
- protect witnesses from harassment or undue embarrassment
Court will also determine what technology will be used and whether jurors can ask questions
Leading Questions on Direct Examination Rule 611(c)
Generally not allowed on direct examination except
necessary to develop witness's testimony, establish background information about a witness; jog memory; lay foundation; or facilitate a young or timid witness. hostile witness, an adverse party, or party identified with an adverse party.
Scope of Cross Examination
Should not go beyond the subject matter of direct examination and matters affecting the witness credibility.
Where Examiner and Witness are on the same side
Leading questions are not allowed.
Where D calls an adverse witness he is asks leading questions.
P may not use leading questions on cross-examination
Writing Used to Refresh Memory
When allowed
What rules apply or dont apply
What can be used
On direct the examiner is allowed to jog the witness memory.
- writing not introduced into evidence
- Neither Hearsay nor Best evidence rule applies to refreshing
- Authentication is not required
- Any writing, photograph, further questioning, or other forms of evidence will suffice.
Rights of Adverse party when writing is used to refresh memory
- Right to inspect
- Cross examine with it
- Show writing to jury for comparison
- introduce relevant portions into evidence to impeach
Procedural Steps to refreshing memory with a writing (5)
- Give a copy to the judge and opposing counsel
- mark it as an exhibit for identification only
- ask witness to read it silently
- take back the writing
- ask the witness to testify independently of the writing
Where privileged material is used to refresh memory
waiver has occurred
adverse party may inspect the information.
Prior Statement of a witness Rule 613
a PINS, not sworn, is admissible only to impeach.
May be oral or written
Contents need not be shown to the witness at the time.
must, on request, show it to adverse party’s attorney.
Extrinsic evidence is admissible if witness denies PINS
Witness has the right to explain or deny the statement
When Extrinsic evidence is admissible on PINS
The witness has an opportunity to explain or deny the PINS
and
an adverse party can examine the witness about it
Courts Calling or Examining a witness
Court may call witnesses on its own or at a party’s request.
Each party is entitled to cross examine the witness
Court may examine a witness regardless of who calls the witness
Court’s Exclusion of Witness
Court must exclude witness at the request of a party, or on its own, so that they cannot hear the other witnesses testimony.
Rule does not allow the exclusion of certain parties.
Who the Court CANNOT exclude from court
- A party
- An officer or employee of a party designated the party’s representative by its attorney.
- A person whose presence a party shows to be essential to presenting the party’s claim
- Person authorized by statute to be present - victims.
Remedy for failure to exclude witness’s at the request of a party
It is error if court fails to exclude witnesses.
Remedy includes mistrial, or holding witness in contempt.
Opinion on an Ultimate Issue:
In General and the Hinkley Rule
An opinion on an ultimate issue is not generally objectionable.
Exception
criminal case - expert witness cant state opinion that D did, or did not, have a mental state or condition constituting an element of the crime or defense.
These matters are for the trier of fact alone.
Lay Witness Opinion Testimony
Any testimony provided or if she gives an opinion or inference
- must be rationally based on the perception of the witness
- Helpful to clear understanding witnesses testimony or determining a fact in issue
- not based on scientific, technical, or other specialized knowledge
Proper Scope of Lay Witness Testimony
VEMPSS
Value of own Land
Emotional state of others
Measurements - speed, weight, distance
Physical State - intoxication, injury
Sensory Descriptions - taste, smell, touch, sound
Sanity of Testator - description given by a subscribing witness.
Improper Scope of Lay Testimony
conclusory opinions
opinion of truthfulness
offers legal conclusions.
Requirements for Expert Testimony (3)
Expert is Qualified (SKEET)
Testimony is Relevant
Opinion is reliable - including methods, techniques, and devices
How is an Expert Qualified
SKEET
Special Skills Knowledge Education Experience Training
How is the reliability of an experts methods, devices, or techniques determined?
Other Expert Testimony - Foundation
By Stipulation
Judicial Notice
General Acceptance in the relevant Community (Frye Test)
Daubert v. Merrill Dow - Reliability of Expert Methods
TAPES
federal standard - mbe
Tested - have the methods been tested? Acceptance in the relevant scientific community Pier Reviewed Error Rates Known Standards employed to reach conclusions
Frye Test
general acceptance in the relevant scientific community
Basis of Opinion Testimony by Experts
Personal knowledge acquired at or before trial
Hypothetical questions - facts presented at trial
Facts presented outside of court including data otherwise inadmissible
if reasonably relied on by experts in the field and the probative value of the underlying data outweighs its prejudicial effect.
Balancing test applies where underlying data is otherwise inadmissible and the test favors exclusion
Where underlying data of an expert is otherwise inadmissable
Such data cannot be revealed unless the proponent shows that the probative value of the evidence SUBSTANTIALLY outweighs its prejudicial effect. Test favors exclusion.
A limiting instruction to the jury may be required.
Experts may be properly cross examined as to
Qualifications
Subject matter and basis of opinion
compensation
In addition to common methods such as bias, PINS, and truthfulness
Disclosure of Facts or Data underlying Expert Opinion (Rule 705)
Expert may state an opinion and give reasons for it
without first testifying to the underlying facts or data.
May be required to disclose facts and data on cross.
Court Appointed Experts (Rule 706)
Court may on its own or at the request of the parties appoint an expert witness.
Witness must advise parties of the findings and allow either party to depose him regarding these findings.
Witness may allow either party to call as a witness and be cross examined.
Habit Evidence
Regular response to a given situation without a high degree of forethought.
Need not be corroborated.
Characterized by the words “always” or “Invariably”
Words such as “Frequently” or Often do not indicate habit
Habit Evidence refers to
A narrow range of highly probative traits namely automatic, invariable patterns of behavior.
Requirements for admissibility of prior convictions more than 10 years old.
Probative Value must SUBSTANTIALLY outweigh prejudicial effect.
Must give notice of intent to use to the other party.
Where Juror Affidavit will be Admitted
Newspaper articles about case
unauthorized visit to scene
accepted bribe
conducting out of court experiment
threats of harm made against juror or family
communication by juror with court personnel
Collateral Matter Rule
Extrinsic evidence on a collateral Matter is not allowed.
May not impeach on a collateral matter with extrinsic evidence.
Expert Opinion on an ultimate issue
May give an opinion on an ultimate issue except for legal conclusion.
