Witnesses Flashcards
What is the general rule on witness competency? What is the NY distinction for children?
Generally, the testimonial qualifications a witness must have in order to be allowed to testify are:
a. Personal knowledge - the witness has to speak to something they saw or heard.
b. Oath or Affirmation - witness has to demonstrate an appreciation of the duty to tell the truth.
New York rule on children: a child of any age may testify under oath if the child understand and appreciates the duty to tell the truth.
a. Civil Cases: a child must be able to testify under oath.
b. Criminal Cases: a child under the age of 9 who cannot understand the duty of an oath may still testify (give unsworn testimony), but a defendant cannot be convicted based solely on the unsworn testimony of a child. There must be some corroborating evidence.
What is a “Dead Man’s Statute”? What is the NY distinction?
A state that has a “Dead Man’s Statute” provides that in a civil action, an interested witness is incompetent to testify against the estate of a decedent concerning a personal transaction or communication between the interested witness and the decedent.
**New York: **the dead man’s statute is similar to the rule in most other states, with one important exception:
Automobile accident exception:** **in an auto accident case based on negligence, the surviving interested party: (1) may testify about her observations of the decedent’s conduct and demeanor, (2) BUT may not testify about oral statements made by the decedent.
When and how may you refresh a witness’ recollection? What may the adversary do in response?
Basic Rule: Witness may not read from prepared memorandum; must testify on basis of current recollecton, BUT if witness’ memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
The adversary has the right to:
- inspect the memory-refresher;
- to use it on cross-examination;
- to introduce it into evidence.
What kind of lay opinion testimony is admissible?
Lay opinion is admissible if:
- rationally based on witness’ personal perception (i.e. personal knowledge), AND
- helpful to the jury
Examples:
Drunk/sober
Speed of vehicle
Handwriting
Emotions of another person
Sane/insane
Odors
Handwriting
Character (when permitted)
What is necessary to qualify an expert witness?
Qualifications: education AND/OR experience
Proper Subject Matter: Scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact.
What can an expert opinion be based on?
The expert may draw upon three permissible data sources:
- Personal knowledge (e.g. treating physician);
- Other evidence in the trial record (testimony by other witnesses, exhibits) made known to expert at trial by hypothetical question; or
- Facts not in evidence (from outside the record) if those facts are a type reasonably relied upon by experts in this field.
**NOTE: **In general, the contents of such out of court material should not be disclosed to the jury (if it does not fit within an independent hearsay exception) because of the hearsay danger that the jury will misuse the out of court material for its truth. However, if the judge determines that disclosure would help the jury evaluate the expert’s opinion, the out of court material may be admitted with a warning to the jury to consider it only in evaluating the quality of the expert’s opinion.
How is the relevance and reliability of an expert opinion determined? What is the NY distinction?
To be admissible, expert opinion must be relevant to the issue at hand and sufficiently reliable. That means the expert must use reliable methods and principles and reliably apply them to the facts of the case.
There are four principal factors the court will use to determine the reliability of principles and methodology used by an expert to reach opinion (also called the Daubert factors) - remember TRAP:
Testing of principles or methodology;
Rate of error
Acceptance by other experts in same discipline (general acceptance is not required)
Peer review and publication
New York: If the opinion is based on science (e.g. medicine, engineering, social psychology), the method or principle must have achieved general acceptance in the relevant scientific field. (Frye standard)
Can lay and expert witnesses testify to the ultimate issue?
Opinion testimoney is not objectionable just because it embraces an “ultimate issue” in the case, BUT all other requirements for opinion testimony must be satisfied including the requirement that the opinion is helpful to the jury.
Exception: “Ultimate issue” is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state. The expert can only testify in general terms about the effects of a defendant’s mental condition without linking it to the particular case.
When can a party impeach a witness under the Federal and NY evidence rules?
Federal: Any party may impeach any witness, including her own witness, by any method of impeachment.
New York: Generally, a party may not impeach her own witness.
Exception: A party may impeach her own witness with a prior inconsistent statement but only if it was: (1) made in writing and signed by the witness, OR (2) made in oral testimony under oath.
Criminal case limitation: the prior inconsistent statement may be used only if the witness’ current testimony is affirmatively damaging to the party who called the witness, not mearely a “cloud on credibility.”
What are the different methods a party can impeach a witness?
- Prior inconsistent statements
- Bias, interest, or motive to misrepresent
- Sensory deficiencies
- Bad reputation or opinion about witness’ character for truthfulness
- Criminal convictions
- Bad acts (without conviction) that reflect adversely on witness’ character for truthfulness
- Contradiction
What are the possible ways to use the impeachment methods? When can use them?
There are two possible ways to use impeachment methods:
- Confronting the witness: Ask the witness about the impeaching fact with the aim of having the witness admit it; OR
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Extrinsic evidence: prove the impeaching fact with extrinsic evidence (documentary evidence or testimony from other witnesses).
a. The impeaching fact may be proven with extrinsic evidence as to all of the impeachment methods, EXCEPT bad acts and collateral contradictory facts.
b. For the impeachment methods that allow extrinsic evidence, it is not necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced EXCEPT:
* Multistate: Bias
* New York: Prior inconsistent statement
Under what circumstances is a prior inconsistent statement admissible as substantive evidence? When must a witness be confronted with their prior inconsistent evidence? What are the NY distinctions?
Generally, the prior inconsistent statement is admissible only for the purpose of impeachment.
However, a prior inconsistent statement of a witness may be admitted both to impach *and *as substantive evidence, if the witness is currently subject to cross-examination and the prior inconsistent statement was made:
a. orally under oath, AND
b. part of a formal hearing, proceeding, trial, or deposition.
New York: prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach.
Confrontation:
Federal: confrontation timing is flexible, but after proof by extrinsic evidence, a witness must be given an opportunity at some point to return to stand to explain or deny the prior incosistent statement.
New York: The witness must be confronted with prior inconsistent statement while she is on the stand. If oral, tell witness what was said, when and where; if in writing, show it to the witness.
Exception (FRE and NY): No need to give witness any opportunity to explain if witness is the opposing party
How do you impeach a witness for bias? When must a witness be confronted with alleged bias?
A party may impeach a witness by showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case.
Confrontation:
Federal: The witness must be confronted with alleged bias on the stand.
New York: Confrontatio of witness is not required.
Once confrontation prerequisite is met, bias can be proven by extrinsic evidence.
When and how can criminal convictions be used to impeach a witness? What are the NY distinctions?
Federal:
Permissible Types of Convictions:
- Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element of the crime. Crime must be the uttering of false words, not mere theft. Court has no discretion to exclude.
- If conviction did not require proof of false statement, it must be a felony, and court may exclude, in its discretion, if probabtive value on issue of witness credibility is outweighed by danger of unfair prjeudice to a party.
Time Limitation: for both categories, the conviction, or release from prison, whichever is later, generally must be within 10 years of trial.
New York:
- **In general: **any witness may be impeached with a conviction for any type of crime, without regard to how old the conviction is and without balancing probative value vs. the danger of unfair prejudice.
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Special rule for Criminal Defendants only: When the witness is the criminal defendant who testify in his own defense, the court must conduct a hearing to balance the probative value of the conviction (on the issue of defendant’s credibility) against the risk of unfair prejudice.
a. Factors that make conviction probative: seriousness, relation to trust and deception.
b. Factors that make a conviction unfairly prejudicial: similarity to the currently charged offense, inflammatory nature.
When and how can a party inquire into a witness’ prior bad acts? What are the NY distinctions?
A witness may be asked about a prior bad act if it relates to deceit or dishonesty - it doesn’t have to be a crime.
Procedure: To confront th witness on cross-examination. No intrinsic evidence of bad acts is permitted. The cross-examiner must have good-faith basis for the inquiry, and permission to make the inquiry is subject to the court’s discretion. The inquiry is limited to the act of untruthfulness itself, not its consequences, such as job termination, civil,judgment, or arrest.
New York: A witness may be asked about any prior bad act that is vicious, criminal or immoral in the court’s discretion, even if it does not directly relate to truthfulness, e.g. arson, burglary rape. Proof with extrinsic evidence is not allowed.
Exception: If the witness is a criminal defendant who testifies in his own defense, the defendant is entitled to a hearing (just as with criminal convictions.
