Witnesses

Question 1

What are the purpose andelements of a “Dead Man’s Statute”?

NOTE: NY Distinction

Answer 1

Death seals lips of 1 party, DMS seals lips of other by making him incompetent to testify

4 elements…

1) Civil action
2) 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) = NO DMS, so assume a witness is NOT incompetent unless the q states that this jx DOES have a DMS

NY DISTINCTION:
AUTO accident case based on NEGLIGENCE, the surviving interested party:

(i) MAY testify about his observations re: the decedent’s conduct/demeanor; BUT

MAY NOT testify about oral stmts made by decedent

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”)

Question 2

When are leading questions allowed to be asked?

Answer 2

They 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: HAPY

1) Hostile witness (based on declaration from the ct)
2) Adverse party or someone under cntrl of adverse party
3) Preliminary/introductory matters (i.e. to get the qs started)
4) Youthful or forgetful witness

Question 3

When are lay witnesses’opinions admissible?

Answer 3

1) Opinion 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: (i) Drunk OR sobriety

(ii) Speed of vehicle
(iii) Sanity
(iv) Emotions of another person
(v) Handwriting (Normal Course)
(vi) Opinion abt character (MBE ONLY, if meets test for relevance)

Question 4

What are the 2 competency requirements for a witness to be deemed competent?

NOTE: NY Distinction for children

Answer 4

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:
Children = 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)

Question 5

What are the 2 circumstances where WRITINGS are allowed to AID oral testimony?

NOTE: NY Distinction

Answer 5

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:

(1) inspect the refresher;
(2) use it on cross-examination; OR
(3) 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… (i) the doc fails to jog witness’s memory; (ii) the witness had personal knowledge when doc created;
(iii) writing was EITHER (a) made; OR (b) 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)

Question 6

What are the 4 requirements for expert testimony?

NOTE: NY Distinction

Answer 6

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… (i) Opponent MAY disclose the underlying facts on CROSS
(ii) 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:

4 Factors: T-R-A-P

(i) Testing of principles or methodology
(ii) Rate of error
(iii) Acceptance by other experts in field (not necessarily general acceptance)

NY DISTINCTION: GENERAL Acceptance is required in the relevant field

(iv) Peer review and publication

Question 7

When and how can aparty invoke hearsay exception to use a “learned treatise” in aid of expert testimony?

NOTE: NY Distinctions

Answer 7

1) 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) 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: Treatise is NOT admissible by itself; it CAN ONLY be read into evidence

NY DISTINCTIONS:

1) DIRECT examination of a party’s OWN expert

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) CROSS examination of opponent’s expert

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 (OR acknowledged on cross that it is a reliable authority)

Question 8

When can a witness testify to the ultimate issue in a case?

Answer 8

Both expert AND lay witnesses can generally address the ultimate issue in a case

Limitations:

1) Criminal case: EXPERT CANNOT give opinion as to Δ’s mental state
2) Witness CANNOT testify in legal jargon or give conclusive legal opinion, b/c is NOT helpful to jury

Question 9

What is the proper subject matter for a cross examination?

Answer 9

1) Matters w/in scope of DIRECT examination; AND
2) Matters that test the witness’s CREDIBILITY

NOTE: if this right to X is impaired, the testimony will be stricken at the minimum

Question 10

How and when can aparty impeach or bolstertheir OWN witness?

NOTE: NY Distinction

Answer 10

1) Bolstering own witness isNOT allowed until witness’s credibility is attacked (impeached)

No prior consistent statements allowed on direct (hearsay and limited probative value)

EXCEPTION: 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)

Question 11

What are the 7impeachment methods?

Answer 11

When a party seeks to prove that opposing witness is either lying or mistaken…

1. Prior inconsistent statements
2. Bias, interest, or motive to misrepresent
3. Sensory deficiencies
4. Bad reputation for truthfulness
5. Criminal convictions (felony OR any crime relating to truthfulness)
6. Bad acts (w/o conviction that reflect adversely on witness’s truthfulness )
7. Contradiction

Question 12

What are the 2 ways to use the impeachment methods?

Answer 12

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)

Question 13

How does the “prior INCONSISTENT stmt” impeachment method work?

NOTE: NY Distinction

Answer 13

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 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

Question 14

How does the “bias, interest or motive to misrepresent” impeachment method work?

NOTE: NY Distinction

Answer 14

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 If confrontation prereq is met (if required), then bias, etc may be proven by extrinsic evidence

Question 15

How does the “sensory deficiencies” impeachment method work?

Answer 15

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

Question 16

How does the “bad reputation/opinion for truthfulness” impeachment method work?

NOTE: NY Distinction

Answer 16

Bad community reputation OR witness’ opinion that another witness has bad character for truthfulness

1) Confrontation is NOT req’d
2) To bring in extrinsic evidence…
(a) Call character witnessto testify abt target witness’s community reputation OR (b) character witness’s opinion of target witness’s character for truthfulness, butNEVER with specific acts

NY DISTINCTION: character witness can ONLY testify abt community reputation (NOT opinion)

Question 17

How does the “criminal conviction” impeachment method work?

NOTE: NY Distinction

Answer 17

Purpose: Suggest false testimony [NOTE: do NOT confuse these rules of IMPEACHMENT w/ rules governing MIMIC crimes used as SUBSTANTIVE evidence to prove ∆’s gult]

Permissible types of convictions:
1) ANY crime (felony or misdemeanor)as to which the prosecution was REQUIRED to prove FALSE STMT as an element of the crime (e.g. fraud, perjury, etc); PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old

NOTE: judge has NO discretion TO EXCLUDE once this test is met

2) Conviction of any type of FELONY;PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old

NOTE: judge may exclude in his discretion (if there is danger of unfair prejudice vs. probative value)

Method of proof:

1) Ask witness to admit prior conviction; OR
2) Introduce record of conviction as extrinsic evidence (WITHOUT confrontation)

NY DISTINCTION: any witness may be impeached with a conviction for ANY TYPE of crime, REGARDLESS of how OLD the conviction is and WITHOUT balancing probative value vs. unfair prejudice.

EXCEPTION for CRIMINAL ∆s: when a ∆ is testifying as HIS OWN WITNESS, the ct must conduct a hearing to balance the probative value of the conviction vs. unfair prejudice

Factors that make a conviction probative: (i) seriousness of the crime; (ii) crime’s relation to trust and deception

Factors that make a conviction unfairly prejudicial: (i) similarity to the currently charged offense; (ii) inflammatory nature of conviction (e.g. child molestation)

Question 18

How does the “bad acts w/o conviction” impeachment method work?

NOTE: NY Distinction

Answer 18

A witness may be asked about a PRIOR BAD ACT if it relates to DECEIT OR DISHONESTY (doesn’t have to be a crime, e.g. lying on a resume)

Procedure: ONLY permitted with CONFRONTATION on CROSS examination with good faith basis

Whether to allow is in the ct’s DISCRETION

NOTE: NO EXTRINSIC evidence allowed (Can only ask abt the act and hope that the witness admits it; if not, you MUST move on);Be careful of intersection w/ BIAS impeachment where extrinsic evidence IS admissible NY DISTINCTION: A witness may be asked abt ANY prior bad act that is viscous, criminal OR immoral (in the ct’s discretion) EVEN IF the act does not relate to truthfulness NOTE: in the prosecution’s cross of a CRIMINAL ∆ who is testifying as OWN witness, the ∆ is entitled to a hearingat which the ct will balance probative value (of bad act) vs. danger of unfair prejudice

Question 19

How does the “contradiction” impeachment method work?

Answer 19

Contradiction = when cross examiner tries to get witness to admit (thru “confrontation”) that she made a mistake or lied on a previous direct examination (in same trial)

NOTE: Extrinsic evidence is NOT allowed when the fact is COLLATERAL (i.e. it has not significant relevance to the case or the witness’s credibility)

Question 20

What are 2 methods a party can use to rehabilitate an impeached witness?

NOTE: NY Distinction

Answer 20

A witness may be rehabilitated ONLY AFTER the witness’ credibility has been attacked thru impeachment

1) Showing witness’s good character for truthfulness

When: Rehab only for impeachment suggesting witness is lying (NOT just mistaken)

E.g., Bad reputation/opinion, criminal conviction, bad acts w/o conviction

How: Character witness who can testify (using REPUTATION or OPINION evidence) NY DISTINCTION: character witness can use REPUTATION evidence ONLY

2) Prior CONSISTENT statement to rebut charge of recent fabrication

When: If the witness’s trial testimony is charged as a recent fabrication (or the product of improper influence), a PRIOR stmt by the witness that’s consistent w/ testimony IS ADMISSIBLE to rebut IF the stmt was MADE before the motive to fabricate arose E.g., if the witness said the same thing PRIOR taking a bribe; this is admissible to show that the stmt was not a lie based on improper influence

Purpose: a prior consistent stmt that fits w/in this rule is ADMISSIBLE to rehabilitate credibility AND as substantive evidence that prior stmt was true (not hearsay!)

NY DISTINCTION: admissible ONLY TO rehab (NOT as substantive evidence)

Question 21

(NY ONLY)

When is a judge allowed to give an adverse inference instruction based on missing witness?

Answer 21

Allows a jury to draw an unfavorable inference based on a party’s FAILURE to call a witness who would normally be expected to support the party’s version of events

Allowed IF:

(i) the witness in question has MATERIAL KNOWLEDGE to the trial;
(ii) the witness was expected to give testimony FAVORABLE to the party against whom the charge is sought (e.g. the witness is an emp and subject to the person’s cntrl); AND
(iii) the witness is AVAILABLE to testify