Witnesses Flashcards
Competency of Witnesses: generally
1) personal knowledge
2) oath or affirmation
Dead Man’s Statute
1) witness not ordinarily incompetent merely because she has an interest in the outcome of litigation
2) BUT under statute, in a civil action, interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent
3) fear of perjury
Leading Questions on Direct
1) preliminary intro matters
2) youthful or forgetful witness
3) hostile
4) adverse party or someone under control of adverse party
Refreshing recollection
1) witness may not read from prepared memo, must only testify on basis of current recollection
2) BUT if memory fails, may be shown a memo or ANY other tangible item to jog his memory
Refreshing recollection: adversary rights
1) inspect the memory-refresher
2) use it on cross-exam
3) introduce it into evidence
Past recollection recorded: foundation needed to read into evidence
1) showing writing to witness fails to jog memory
2) witness had personal knowledge at former time
3) writing was either made by witness or adopted by witness
4) making or adopting occurred while the event was fresh in witness’ mind
5) witness can vouch for accuracy of writing when made or adopted
Lay Witness opinion admissible when
1) rationally based on witness’ perception
2) helpful to the jury
EXAMPLES:
drunk, sober, speed of vehicle, sane, insane, emotions of another person, odors, handwriting, character
Expert Witness qualifications
1) education AND/OR
2) experience
Experts: Proper subject matter
scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact
Experts: basis of opinion
“reasonable degree of probability or reasonable certainty”
Experts: data sources
1) personal knowledge
2) other evidence admitted at trial
3) facts outside the record of a type reasonably relied upon by experts forming opinions in the particular field (can’t disclose to jury beyond general ID)
Experts: reliability of principals and methodology
Court acts as “gatekeeper”
1) testing of principals and methods
2) rate of error
3) acceptance by other experts in the field, general acceptance is not needed
4) peer review or publication
Experts: learned treatise
1) Direct: may read into evidence relevant portions as substantial evidence if established as reliable (must be with expert testimony)
2) cross-exam: read into evidence to impeach and contradict opponent’s expert
3) CANNOT be introduced as an exhibit
Ultimate Issue Civil
1) opinion testimony of lay or expert not objectionable just because it embraces an ultimate issue
2) BUT all other requirements for opinion testimony must be satisfied, including helpfulness
3) if phrased in legal terms, not considered helpful b/c legal jargon that the jury doesn’t understand
Ultimate Issue: Criminal
1) proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state
2) expert can only testify in general terms about the effects of a D’s mental condition without linking it to the particular case
Cross-Exam
1) matters within scope of direct exam
2) matters that the witness’s credibility
Bolstering Own witness: general rule
1) Not allowed until after witness’s credibility has been attacked
2) rehabilitation
Prior consistent statement
1) INADMISSIBLE b/c minimal probative value and hearsay
2) EXCEPTION: prior identification of person and witness is testifying at trial to be subject to cross-exam
Impeachment of own witness
Completely find to impeach own witness on direct
Impeachment methods
1) prior inconsistent statement
2) bias, interest, or motive to misrepresent
3) sensory deficiencies
4) bad reputation or opinion about witness’s character for truthfulness
5) criminal convictions
6) bad acts (without conviction) that reflect adversely on witness’s character for truthfulness
7) contradiction
Procedure methods for Impeachment
1) ask the witness about the impeaching fact with aim of having the witness admit it: confronting the witness
2) prove the impeaching fact with “extrinsic” evidence
Impeaching fact may be proven with extrinsic evidence when using the following methods
1) prior inconsistent statement
2) bias, interest, or motive to misrepresent
3) sensory deficiencies
4) bad reputation or opinion about witness’s character for truthfulness
5) criminal convictions
6) contradicting facts that are not collateral
When using extrinsic evidence to impeach, necessary to ask witness about fact before evidence brought in?
No, except when dealing with bias
Prior inconsistent statement: general rule
1) witness may be impeached by showing on a prior occasion, she made a material statement (oral or written) that is inconsistent with her trial testimony
2) only admissible for purpose of impeachment unless against opposing party
Prior inconsistent statement: exception
Admissible for both impeachment and substantive evidence if
1) witness prior inconsistent statement was made
2) orally and under oath AND
3) part of a trial
4) or deposition
5) or formal hearing (like grand jury)
Prior inconsistent statement: timing general rule
1) flexible
2) not required to be immediately confront Witness
3) BUT after proof by extrinsic evidence witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement
Prior inconsistent statement: timing exception
1) if witness is opposing party
2) no opportunity to explain need be given
3) may also be introduced as substantive evidence under opposing party statement
Bias, Interest, motive to misrepresent
1) witness must be confronted with alleged bias while on the stand
2) bias may be proven by extrinsic evidence so long as confrontation prerequisite is met
Sensory Deficiencies
1) anything that could affect witness’s perception or memory at time of event or while on the witness stand
2) EXAMPLES: bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs
3) no confrontation required
4) extrinsic evidence allowed
Bad reputation or opinion about character for truthfulness
1) any witness may be impeached with this
2) no confrontation required
3) extrinsic evidence only valid way to accomplish this (character witness)
Criminal Convictions to impeach: permissible convictions
1) ANY crime where prosecutor is required to prove false statement as an element of crime: perjury, fraud
2) if no false statement, must be a felony and court may exclude at discretion
Felony balancing test: impeachment
Probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party
Criminal convictions for impeachment: time limit
1) generally within 10 years of trial
2) if more than 10 years, only allowed IF proponent shows probative value on issue of credibility is SUBSTANTIAL
Criminal convictions for impeachment: methods of proof
1) ask witness to admit prior conviction
2) introduce record of conviction (extrinsic evidence)
3) no requirement to confront witness before introduction of extrinsic evidence
Bad acts (without conviction) to show untruthfulness: general rule
1) confrontation on cross-exam = only permissible procedure
2) no extrinsic evidence allowed
3) must have good faith basis for inquiry
4) permission to ask subject to court’s discretion
5) limited to act itself, not consequences
6) cannot talk about “arrest” unless falls under bias impeachment
Contradiction: general rule
1) during cross-exam, L may try and obtain admission that W made mistake or lied about any fact she testified to on direct
2) IF W refuses to admit to lie/mistake, extrinsic evidence not allowed for the purpose of contradiction IF the fact at issue is collateral
Rehabilitation: 2 ways
1) showing witness’s good character for truthfulness
2) prior consistent statement to rebut a charge of recent fabrication
Rehabilitation: showing witness’s good character for truthfulness
1) only allowed when witness is impeached for lying instead of mistake in testimony
2) allowed to bring out character witness and use reputation or opinion testimony to attempt and rehabilitate
Rehabilitation: prior consistent statement
1) if the witness’s testimony is charged as a recent fabrication, product of undue influence
2) prior statement by witness that is consistent with testimony ADMISSIBLE to rebut
3) prior statement must have been made before the motive to fabricate arose
