Witnesses

Question 1

Competency of Witnesses: generally

Answer 1

1) personal knowledge

2) oath or affirmation

Question 2

Dead Man’s Statute

Answer 2

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

Question 3

Leading Questions on Direct

Answer 3

1) preliminary intro matters
2) youthful or forgetful witness
3) hostile
4) adverse party or someone under control of adverse party

Question 4

Refreshing recollection

Answer 4

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

Question 5

Refreshing recollection: adversary rights

Answer 5

1) inspect the memory-refresher
2) use it on cross-exam
3) introduce it into evidence

Question 6

Past recollection recorded: foundation needed to read into evidence

Answer 6

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

Question 7

Lay Witness opinion admissible when

Answer 7

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

Question 8

Expert Witness qualifications

Answer 8

1) education AND/OR

2) experience

Question 9

Experts: Proper subject matter

Answer 9

scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact

Question 10

Experts: basis of opinion

Answer 10

“reasonable degree of probability or reasonable certainty”

Question 11

Experts: data sources

Answer 11

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)

Question 12

Experts: reliability of principals and methodology

Answer 12

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

Question 13

Experts: learned treatise

Answer 13

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

Question 14

Ultimate Issue Civil

Answer 14

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

Question 15

Ultimate Issue: Criminal

Answer 15

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

Question 16

Cross-Exam

Answer 16

1) matters within scope of direct exam

2) matters that the witness’s credibility

Question 17

Bolstering Own witness: general rule

Answer 17

1) Not allowed until after witness’s credibility has been attacked
2) rehabilitation

Question 18

Prior consistent statement

Answer 18

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

Question 19

Impeachment of own witness

Answer 19

Completely find to impeach own witness on direct

Question 20

Impeachment methods

Answer 20

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

Question 21

Procedure methods for Impeachment

Answer 21

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

Question 22

Impeaching fact may be proven with extrinsic evidence when using the following methods

Answer 22

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

Question 23

When using extrinsic evidence to impeach, necessary to ask witness about fact before evidence brought in?

Answer 23

No, except when dealing with bias

Question 24

Prior inconsistent statement: general rule

Answer 24

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

Question 25

Prior inconsistent statement: exception

Answer 25

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)

Question 26

Prior inconsistent statement: timing general rule

Answer 26

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

Question 27

Prior inconsistent statement: timing exception

Answer 27

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

Question 28

Bias, Interest, motive to misrepresent

Answer 28

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

Question 29

Sensory Deficiencies

Answer 29

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

Question 30

Bad reputation or opinion about character for truthfulness

Answer 30

1) any witness may be impeached with this
2) no confrontation required
3) extrinsic evidence only valid way to accomplish this (character witness)

Question 31

Criminal Convictions to impeach: permissible convictions

Answer 31

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

Question 32

Felony balancing test: impeachment

Answer 32

Probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party

Question 33

Criminal convictions for impeachment: time limit

Answer 33

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

Question 34

Criminal convictions for impeachment: methods of proof

Answer 34

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

Question 35

Bad acts (without conviction) to show untruthfulness: general rule

Answer 35

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

Question 36

Contradiction: general rule

Answer 36

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

Question 37

Rehabilitation: 2 ways

Answer 37

1) showing witness’s good character for truthfulness

2) prior consistent statement to rebut a charge of recent fabrication

Question 38

Rehabilitation: showing witness’s good character for truthfulness

Answer 38

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

Question 39

Rehabilitation: prior consistent statement

Answer 39

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