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Witnesses Flashcards

0
Q

Court may excuse a witness if:

A

The probative value of witness testimony
is outweighed by undue prejudice.

R403

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1
Q

General Competency Rule

A

Every Person is a competent witness.

challenger has burden to prove a witness is not competent.

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2
Q

Dead Man’s Statute

A

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.

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3
Q

Inquiry into validity into a verdict, a juror may not testify about

A

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

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4
Q

What a Juror may testify to

A
  1. Extraneous prejudicial information improperly brought to the jurors attention.
  2. An outside influence was improperly brought to bear on any juror.
  3. A mistake was made entering the verdict on the verdict form.
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5
Q

Oath or Affirmation to testify

A

A witness must give an oath or affirmation to testify truthfully.

in a form designed to impress that duty on the witness’s conscience.

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6
Q

Examples where jurors testimony will be excluded

A

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

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7
Q

Who may impeach a witness?

A

credibility may be attacked by any party,

including the party that called him.

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8
Q

Methods of Impeachment

A

Bias or Prejudice
Sensory defects
Prior Inconsistent Statements
Character

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9
Q

Impeachment for Bias or Prejudice

Examples

A

Personal or family hostility or relationship
Business Relationship
Financial Relationship
Fee Arrangement

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10
Q

Character Impeachment - 4 Categories

A

Reputation or Opinion
Bad Acts
Felony Convictions
Convictions of crimes involving dishonesty or false statement

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11
Q

Witnesses Character for Truthfulness or Untruthfulness

A

character for untruthfulness is always material
may be attacked by:

  1. testimony about character for truthfulness or reputation for untruthfulness.
  2. Opinion testimony about character however, evidence is available where character for truthfulness is attacked.
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12
Q

Is Evidence of bias or interest sufficient to introduce evidence of character for truthfulness to be introduced?

A

No.

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13
Q

Rule 608(b) Bad Acts Impeachment

A

instances of conduct probative for truthfulness are admissible for attacking witness credibility

  1. Must be a question
  2. On cross examination
  3. inquire on prior unconvicted acts bearing on truthfullness

ie filing false tax return, forgery, using a fake name, etc.

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14
Q

Elements of Bad Act Impeachment

A
  1. A question
  2. On Cross Examination
  3. Inquiring into prior Unconvicted acts bearing on truthfulness or dishonesty.
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15
Q

Examples of Prior bad acts having NO bearing on truthfulness

A

Use of drugs or alcohol
Failure to pay debts
gambling or Prostitution
sexual misconduct

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16
Q

Limitations on questions for Bad Acts Impeachment

A
  1. Questions must be probative for truthfulness
  2. Must be asked in good faith
  3. Bad acts cannot be too remote in time
  4. Only questions of fact are allowed, not rumors or arrests
  5. Judge has discretion to exclude
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17
Q

Witness Lies about Prior Bad Acts

What rule applies and what result

A

Collateral Matter Rule Applies.
Extrinsic evidence is inadmissible to prove dishonest act.
Examiner is bound by the witness answer.

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18
Q

Impeachment by Evidence of Prior Conviction (Rule 609)

2 Categories

A
  1. Felonies - crimes punishable by death or sentence < one year
  2. Crimes involving dishonesty or false statements - perjury, counterfeiting, larceny by trick, false pretenses, embezzlement, forgery
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19
Q

Felony Convictions used to impeach a witness:

Accused vs any witness other than the accused.

A

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

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20
Q

Impeachment with crimes involving dishonesty or false statement

What crimes are admissible?

A

Includes felonies and misdemeanors.

Admissible if to 10 years old or less

If crime involves DUF - Deceit, Untruthfulness or Fraud

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21
Q

FRE 609(b) 10 Year Rule

A

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

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22
Q

When is Evidence of Juvenile Adjudications Admissible

A

Will be admissible under Rule 609(d) if:

  1. offered in a criminal case
  2. Adjudication was of a witness other than defendant
  3. adult conviction for that offense would be admissible to attack the adults credibility
  4. evidence is necessary to fairly determine guilt or innocence.
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23
Q

Non-crimen falsi convictions more than 10 years old

A

Such convictions are presumptively inadmissible

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24
Evidence of Witness Religious Beliefs
Inadmissible to enhance or impair a witness credibility
25
Admissibility of convictions under appeal
Convictions under appeal are admissible as is the fact that it is currently under appeal
26
Admissibility of a conviction that has been pardoned.
Convictions that have been pardoned are not admissible
27
How can a defendant hide prior convictions
By not testifying. However, prior convictions will be admissible during sentencing.
28
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: 1. Make procedures effective for determining truth 2. Avoid wasting time 3. protect witnesses from harassment or undue embarrassment Court will also determine what technology will be used and whether jurors can ask questions
29
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. ```
30
Scope of Cross Examination
Should not go beyond the subject matter of direct examination and matters affecting the witness credibility.
31
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
32
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. 1. writing not introduced into evidence 2. Neither Hearsay nor Best evidence rule applies to refreshing 3. Authentication is not required 4. Any writing, photograph, further questioning, or other forms of evidence will suffice.
33
Rights of Adverse party when writing is used to refresh memory
1. Right to inspect 2. Cross examine with it 3. Show writing to jury for comparison 4. introduce relevant portions into evidence to impeach
34
Procedural Steps to refreshing memory with a writing (5)
1. Give a copy to the judge and opposing counsel 2. mark it as an exhibit for identification only 3. ask witness to read it silently 4. take back the writing 5. ask the witness to testify independently of the writing
35
Where privileged material is used to refresh memory
waiver has occurred | adverse party may inspect the information.
36
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
37
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
38
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
39
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.
40
Who the Court CANNOT exclude from court
1. A party 2. An officer or employee of a party designated the party's representative by its attorney. 3. A person whose presence a party shows to be essential to presenting the party's claim 4. Person authorized by statute to be present - victims.
41
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.
42
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.
43
Lay Witness Opinion Testimony
Any testimony provided or if she gives an opinion or inference 1. must be rationally based on the perception of the witness 2. Helpful to clear understanding witnesses testimony or determining a fact in issue 3. not based on scientific, technical, or other specialized knowledge
44
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.
45
Improper Scope of Lay Testimony
conclusory opinions opinion of truthfulness offers legal conclusions.
46
Requirements for Expert Testimony (3)
Expert is Qualified (SKEET) Testimony is Relevant Opinion is reliable - including methods, techniques, and devices
47
How is an Expert Qualified | SKEET
``` Special Skills Knowledge Education Experience Training ```
48
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)
49
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 ```
50
Frye Test
general acceptance in the relevant scientific community
51
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
52
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.
53
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
54
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.
55
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.
56
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
57
Habit Evidence refers to
A narrow range of highly probative traits namely automatic, invariable patterns of behavior.
58
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.
59
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
60
Collateral Matter Rule
Extrinsic evidence on a collateral Matter is not allowed. May not impeach on a collateral matter with extrinsic evidence.
61
Expert Opinion on an ultimate issue
May give an opinion on an ultimate issue except for legal conclusion.

Evidence (10 decks)

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