Witnesses

Question 1

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

Answer 1

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

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

Question 2

When are leading questions allowed to be asked?

Answer 2

Generally NOT ALLOWED on DIRECT EXAMINATION of a witness (but IS allowed on CROSS)
EXCEPTIONS: 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) Hostile witness (based on declaration from the ct)
4) Adverse party or someone under control of adverse party

Question 3

When are lay witnesses’opinions admissible?

Answer 3

Lay witnesses’ opinions are generally inadmissible.
Exceptions:
1) the opinion is rationally based on witnesses’ perception (i.e. personal knowledge); AND
2) Not based on scientific, technical, or other specialized knowledge, AND
3) helpful to the jury in deciding a fact
Areas where lay witnesses’ opinion usually admissible: Drunk OR sobriety Speed of vehicle Sane OR insane Emotions of another person Handwriting (Normal Course) Opinion abt character . Speed of a moving object . General appearance or condition of a person

Question 4

What are the 2 competency requirements for a witness?

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)
- Children’s competency depends on their capacity and intelligence
- Insane ppl may testify as long as they understand they must tell the truth and have capacity to testify accurately
- Judge and jurors may not testify

Question 5

When can a witness use written memoranda?

Answer 5

A witness cannot read her testimony from a prepared memorandum. However memoranda can be used for the following:

1) Refreshing recollection
- Adversary can then use it for inspection and cross
2) Past Recollection Recorded (Hearsay Exception)

Question 6

What are the 4 requirements for expert testimony?

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: personal knowledge; evid. in trial record made known through hypo; facts outside recordIF it’s of type relied by experts in this field
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

Question 7

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

Answer 7

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

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

A party has the RIGHT to CROSS examine ANY opposing witness who testifies at the trial (NOTE: if this right is impaired, the testimony will be stricken at the minimum) Proper subject matter:
1) Matters w/in scope of DIRECT examination; AND 2) Matters that test the witness’s CREDIBILITY

Question 10

When can aparty bolstertheir OWN witness?

Answer 10

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: 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

Question 11

What are the 7impeachment methods for proving an opposing witness is either lying or mistaken?

Answer 11

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 statement” impeachment method work?

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

Question 14

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

Answer 14

Can be used to show that the witness has a motive to lie. - For MBE, witness MUST be confronted while on stand 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

A witness can be impeached by showing (either on cross or thru extrinsic evidence) that his faculties of perception and recollection were so impaired that it’s doubtful that he could have perceived those facts.

• Anything that can effect witness’s perception OR memory is usable (e.g. bad eyes, bad hearing, being high)
• Confrontation is NOT required

Question 16

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

Answer 16

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

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

Question 17

When can you impeach a witness based on prior criminal convictions?

Answer 17

Purpose: to suggest false testimony
[NOTE: do NOT confuse these rules of IMPEACHMENT w/ rules governing MIMIC crimes used as SUBSTANTIVE evidence to prove ∆’s guilt]
1) Conviction of ANY crime (felony or misdemeanor)where the prosecution was REQUIRED to prove DISHONESTY or FALSE STATEMENT(e.g. fraud, perjury, etc); PROVIDED conviction/release from prison (whichever later) is ≤ 10 years old and not a juvenile conviction
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 years old and not a juvenile conviction
NOTE: judge may exclude in his discretion (if there is danger of unfair prejudice vs. probative value)

Convictions cannot be used to impeach the witness if the witness was pardoned AND

• the pardon was based on innocence OR
• they were pardoned and not convicted of a subsequent felony

Question 18

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

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
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?

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)
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 ADMISSABLE 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 admissable 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 ADMISSABLE to rehabiliate credibility AND as substantive evidence that prior stmt was true (not hearsay!)

Question 21

How can a witness use a written memorandum to refresh her recollection?

Answer 21

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
Opposing party can then
(1) inspect the refresher;
(2) use it on cross-examination; OR
(3) introduce it into evidence

Question 22

How can a written memorandum be used as a “past recollection recorded?”

Answer 22

If memory fails witness, and can’t testify, the atty MAY read the doc into evidence if:
1) Witness previously had personal knowledge of the facts in the writing
2) the writing was made or adopted by the witness
3) the writing was timely made when matter was fresh in witness’s mind
4) writing is accurate
5) witness has insufficient recollection to testify fully and accurately
HOWEVER, the writing CANNOT BE ADMITTED INTO EVIDENCE as an exhibit unless offered by an adverse party

Question 23

When can extrinsic evidence be used to impeach a witness about their prior inconsistent statement?

Answer 23

Confrontation timing is FLEXIBLE; not req’d to IMMEDIATELY confront the witness.

• Witness must be given chance to explain or deny the statement
• Adverse party must be given the chance to examine the witness about the statement

Question 24

When can a party impeach their own witness?

Answer 24

1) Witness is an adverse party or identified w an adverse party
2) Witness is hostile and affirmatively uncooperative
3) Witness is one whom the party is required to call by law
4) Witness gives surprise testimony that is harmful to the party calling him

Question 25

When can an expert rely on facts outside the record?

Answer 25

IF 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

Question 26

How can you impeach a witness based on prior criminal convictions?

Answer 26

Method of proof:

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

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) inflamatory nature of conviction (e.g. child molestation)