Witnesses Flashcards
What are the purpose andelements of a “Dead Man’s Statute”? NOTE: NY Distinction
Purpose: Death seals lips of 1 party, DMS seals lips of other by making him incompetant to testify
Elements:
1) In a civil action
2) An interested party is incompetent to testify in own interest
3) Against a decedent’s estate
4) Concerning communications/personal trxns between decedent and interested party
NOTE: under the FRE (thus MBE) there is NO DMS, so assume a witness is NOT incompetant unless the q states that this jx DOES have a DMS
NY DISTINCTION: In an AUTO accident case based on NEGLIGENCE, the surviing interested party: (1) MAY testify about his observations re: the decedant’s conduct/demeanor; BUT MAY NOT testify about oral stmts made by decedent
(2) If an agent (executor, administrators, heirs, legatees, devisees) of the deceased testifies to a trxn w/ the interested person, the interested person MAY then testify abt the same trxn (i.e. the door “was opened”)
When are leading questions allowed to be asked?
Leading qs suggest the answer in the q (e.g. “Isn’t it true that you ran the read light?”)
Generally NOT ALLOWED on DIRECT EXAMINATION of a witness (but IS allowed on CROSS) EXCEPTIONS where leading q’s CAN be asked on DIRECT:
1) Preliminary/introductory matters (i.e. to get the qs started)
2) Youthful or forgetful witness
3) A hostile witness (based on declaration from the ct)
4) Adverse party or someone under cntrl of adverse party
When are lay witnesses’opinions admissible?
Lay witnesses’ opinions are admissible IF: (1) the opinion is rationally based on witnesses’ perception (i.e. personal knowledge); AND (2) helpful to the jury in deciding a fact
Areas where lay witnesses’ opinion usually admissible:
1) Drunk OR sobriety
2) Speed of vehicle
3) Sane OR insane
4) Emotions of another person
5) Handwriting (Normal Course) 6) Opinion abt character (MBE ONLY, if meets test for relevance)
What are the 2 competency requirements for a witness to be deemed competent? NOTE: NY Distinction for children
A competent witness needs… 1) Personal knowledge (i.e. saw with own eyes; heard with own ears); AND 2)Oath or affirmation (i.e. must demonstrate her willingness to tell the truth)
NOTE: for children, the general rule is that a child of ANY age may testify under oath IF the child understands and appreciates the duty to tell the truth
NY DISTINCTION: Civil cases: a child MUST be able to testify under oath Criminal cases: A child UNDER THE AGE OF 9, who cannot understand the duty of an oath MAY STILL TESTIFY (i.e. unsworn testimony), BUT a ∆ CANNOT be convicted SOLELY on the unsworn testimony of a child (i.e. there must be corroborating evidence)
What are the 2 circumstances where WRITINGS are allowed to AID oral testimony? NOTE: NY Distinction
1) Refreshing recollection: if witnesses’s memory fails, he may be shown a document (or anything) to jog his memory
- The doc is NOT offered into evidence by the using party
- Witness CANNOT read from doc -
- Adversary can: (i) inspect the refesher; (ii) use it on cross-examination; OR (iii) introduce it into evidence
2) Past Recollection Recorded (Hearsay Exception): if memory fails witness, and can’t testify, the atty MAY read (but not introduce as evidence) a supporting document, IF foundation is laid.
Foundation:
(i) the doc fails to jog witness’s memory; (ii) the witness had personal knowledge when doc created;
(iii) writing was EITHER (1) made; OR (2) adopted by witness;
(iv) writing was made/adopted when event fresh in witnesses’s mind; AND
(v) witness can vouch for accuracy of doc when made
NY DISTINCTION: if factors established above, the writing MAY BE SHOWN to the jury (as opposed to just read to the jury)
What are the 4 requirements for expert testimony? NOTE: NY Distinction
1) Qualifications: education AND/OR experience
2) Proper Subject Matter: scientific, technical or other specialized knowledge that WILL BE helpful (i.e. non-obvious)to jury in deciding a fact
3) Basis of opinion based on “reasonable degree of certainty”, drawn from THESE permissible sources: (i) personal knowledge; (ii) evid. in trial record made known through hypo; (iii) facts outside recordIF it’s of type relied by experts in this field
NOTE: if an expert is relying on facts OUTSIDE THE RECORD, he MAY generally identify the type of facts underlying the opinion, but MAY NOT disclose the contents of the inadmissible facts to the jury (hearsay!); HOWEVER… the opponent MAY disclose the underlying facts on CROSS. The judge has DISCRETION to allow the expert to disclose contents for the NON-HEARSAY PURPOSE of helping the jury evaluate the expert’s opinion.
4) Relevance and reliability: Determined by ct based on 4 Factors: T-R-A-P -Testing of pinciples or methodology Rate of error
Acceptance by other experts in field (not necessarily general acceptance) Peer review and publication
NY DISTINCTION: GENERAL acceptance is required in the relevant field
When and how can aparty invoke hearsay exception to use a “learned treatise” in aid of expert testimony? NOTE: NY Distinctions
1) On DIRECT examination of a party’s OWN expert: relevant portions of a treatise (periodical or pamphlet) MAY be read into evidence as substantive evidence (to prove the truth of the matter asserted) IF established as reliable authority
2) On CROSS examination of opponent’s expert: relevant portions of treatise (periodical or pamphlet) MAY be read into evidence to IMPEACH and contradict the opponent’s expert, which comes in as SUBSTANTIVE evidence
NOTE: the treatise is NOT admissable by itself; it CAN ONLY be read into evidence
NY DISTINCTIONS: 1) On DIRECT examination of a party’s OWN expert: there is NO HEARSAY EXCEPTION for the contents of a learned treatise (i.e. it can ONLY be used to show general basis if the expert’s testimony [non-hearsay purpose]; CAN’T be substantive evidence) 2) On CROSS examination of opponent’s expert: the learned treatise may ONLY BE USED to IMPEACH the expert’s credibility (NOT as substantive evidence); AND ONLY IF the expert relied on the treatise in developing her own opinion (ORacknowledged on cross that it is a reliable authority)
When can a witness testify to the ultimate issue in a case?
Both expert AND lay witnesses can generally address the ultimate issue in a case, but must be HELPFUL (e.g. lay witness using legal jargon not helpful)
Note: in federal crim cases still object on ultimate issue if expert seeks to give direct opinion on ∆’s mental tate
What is the proper subject matter for a cross examination?
A party has the RIGHT to CROSS examine ANY opposing witness who testifies at the trial (NOTE: if this right is significantly impaired, the testimony will be striken at the minimum)
Proper subject matter:1) Matters w/in scope of DIRECT examination; AND 2) Matters that test the witness’s CREDIBILITY
How and when can aparty impeach or bolstertheir OWN witness? NOTE: NY Distinction
1) Bolstering own witness isNOT allowed until witness’s credibility is attacked (impeached)
EXCEPTION: the witness’s prior ID of a person (“I picked ∆ out of a line up”) comes in a SUBSTANTIVE evidence; PROVIDED the witness is subject to CROSS examination
2) Impeaching own witness is allowed by ANY method of impeachment
NY DISTINCTION: general rule is that a party MAY NOT impeach their OWN witness EXCEPTION: A party may impeach their own witness with a prior inconsistent stmt BUT ONLY IF it was (i) made in writing and signed by witness; OR (ii) made in oral testimony under oath; AND (iii) IF a CRIMINAL case, the witness’s testimony is AFFIRMATIVELY damaging to the party that called the witness (vs. not helpful testimony or cloudy testimony)
What are the 7impeachment methods?
- Prior inconsistent statements
- Bias, interest, or motive to misrepresent 3. Sensory deficiencies
- Bad reputation for truthfulness
- Criminal convictions (felony OR any crime relating to truthfulness)
- Bad acts (w/o conviction that reflect adversely on witness’s truthfulness )
- Contradiction
What are the 2 ways to use the impeachment methods?
1) Ask the witness abt the impeaching fact with the aim of having the witness ADMIT IT (i.e. “confronting” the witness)
2) Prove the impeaching fact with “EXTRINSIC” evidence (i.e. documentary evidence or testimony from other witnesses)
How does the “prior INCONSISTENT stmt” impeachment method work? NOTE: NY Distinction
Definition: witness previously made material statement (orally or in writing) that’s inconsistent w/ her trial testimony
Generally, prior statement ONLY for impeachment (b/c it is usually hearsay) and CANNOT be used as SUBSTANTIVE evidence
EXCEPTION: a prior inconsistent stmt can be used BOTH to impeach AND as substantive evidence, IF the witness is currently subject to cross-examination and the stmt was made (i) orally under oath; AND (ii) as part of a formal hearing, trial, proceeding, or deposition
NY DISTINCTION: this exception DOES not exist in NY, prior inconsistent stmt can ONLY be used to impeach
Procedure:
For MBE: confrontation timing is FLEXIBLE; not req’d to IMMEDIATELY confront the witness, but after proof by extrinsic evidence, witness must be given an opportunity to explain/deny; BUT no need to give witness opp to explain, IF she is OPPOSING PARTY
For NY: witness MUST be confronted w/ prior inconsistent stmt while she was on stand (and must give specific details about the stmt, i.e. when/where); BUT no need to give witness opp to explain, IF she is OPPOSING PARTY
How does the “bias, interest or motive to misrepresent” impeachment method work? NOTE: NY Distinction
Bias, interest, & motive to misrepresent are all critical issues, so parties can use extrinsic evidence to show
Procedure:
For MBE, witness MUST be confronted while on stand
For NY, confrontation of witness is NOT REQUIRED
How does the “sensory deficiencies” impeachment method work?
Anything that can effect witness’s perception OR memory is usable (e.g. bad eyes, bad hearing, being high)
Can be proven by extrinsic evidence Confrontation is NOT required
