** Witnesses **

Question 1

What are the 2 competency requirements for a witness to be deemed competent? NOTE: NY Distinction for children

Answer 1

A competent witness needs…

1) Personal knowledge
* (i.e. saw with own eyes; heard with own ears);

AND 2) Oath or affirmation

• • must demonstrate an appreciation of duty to tell the truth)

*Generally, interested W is competent (exception: Dead Man Statues)

Question 2

Witness Competency:

Children

(NY Distinction)

Answer 2

No set age qualifies child as competent.

MBE: Can testify if u_nderstand obligation to speak truthfully_.

• (need not always take oath)

NY:

• Civil –> child MUST be able to swear under oath
• Criminal –> Child under 9 who canNOT understand duty of oath may give unsworn testimony
  
  • BUT D cannot be convicted unless corroborating evidence of child’s testimony

Question 3

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

NOTE: NY Distinction

Answer 3

Purpose: protect estates from perjured claims by interested parties

FRE: NO DMS –> assume a witness is NOT incompetant unless the q states that this jx has a DMS

ex: Interested W can testify re: contract negot’s w/dead person in civil action agnst his estate

4 elements… interested party is incompetent to:

• 1) In a civil action
• 2) an interested party testify in own interest
• 3) against a decedent’s estate
• 4) concerning communications/personal trxns between decedent and interested party

NY: Dead Man + Auto Dead Man

• Transactions: same as above
  
  • (cant testify at all, even about observations)
• • In an AUTO accident case based on NEGLIGENCE, the surviving interested party:
    
    • MAY testify about his observations re: the decedant’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 4

Leading Questions:

When can they be used?

Answer 4

= suggest the answer in the q (e.g. “Isn’t it true that you ran the read light?”)

Cross: Always allowed

Direct: generally not allowed

• EXCEPTIONS where 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) A hostile witness
    
    • upon declaration from the ct
  • 4) Adverse party or someone under cntrl of adverse party
    
    • (ex: family member)

Question 5

When are lay witnesses’ opinions admissible?

Answer 5

Lay witnesses’ opinions are admissible IF:

• 1) the opinion is rationally based on witnesses’ perception (i.e. personal knowledge);
• • 2) helpful to the jury in deciding a fact

Opinions usually admissible:

• Drunk OR soberiety
• Speed of vehicle
• Sane/insane
• Emotions of another person
• Handwriting
• Opinion abt character
  
  • (MBE ONLY, if meets test for relevance)

Question 6

What are the 4 requirements for expert testimony? NOTE: NY Distinction

Answer 6

4 requirements for expert testimony =

1. Qualifications:
   
   • education
   • OR experience
2. Proper Subject Matter:
   
   • scientific, technical or other specialized knowledg_e 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 hypothetical question;
   • iii) facts outside record IF it’s of type relied by experts in this field in forming opinions
     
     • expert 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
4. Relevance and reliability:
   
   • Determined by ct based on 4 Factors: T-R-A-P
     
     • i) Testing of principles or methodology
     • ii) Rate of error
     • iii) General Acceptance by other experts in field
       
       • _FRE: _** NOT necessarily general acceptance
       • NY exception: if scieintific method, MUST be generally accepted
     • iv) Peer review and publication

• NY

Question 7

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

NOTE: NY Distinction

Answer 7

1) Refreshing recollection If witnesses’s memory fails, he may be shown a document (or anything) to jog his memory

• (need not meet any requirements re: foundation b/c not evidence; evidence = testimony)
• The doc is NOT offered into evidence by the using party
• Witness CANNOT read from doc
• Adversary can:
  
  • (1) inspect the refesher;
  • (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 introduce facts to jury

• FRE: proponent W may read into evidence(but not introduce as evidence) a supporting document
  
  • Opponent can enter into evidence (impeach)
• NY: Can show to jury
  
  • ​Opponent can enter into evidence (impeach)

(5 elements)

• i) the doc fails to jog witness’s memory;
• ii) the witness had personal knowledge when doc created/adopted
• iii) writing was (1) made; OR (2) adopted by witness;
• iv) writing was made/adopted when event fresh in witnesses’s mind;
• v) AND witness can vouch for accuracy of doc when made

Question 8

“Learned treatise” in aid of expert testimony?

NOTE: NY Distinctions

Answer 8

FRE:

• 1) On DIRECT examination:
  
  • party’s OWN expert: relevant portions can read a treatise (periodical or pamphlet)
    
    • (
  • = 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)
  
  • Can read into evidence to
  • = IMPEACH and contradict the opponent’s expert,
  • AND SUBSTANTIVE evidence NOTE: the treatise is

NY DISTINCTIONS:

• NO Treatise exception for hearsay (only intro as impeachment) –>
• 1) On DIRECT examination
• it can ONLY be used to show general basis if the expert’s testimony [non-hearsay purpose]; CAN’T be substantive evidence)
• 2) On CROSS examination of opponent’s expert: the learned treatise USED to IMPEACH the expert’s credibility
  
  • **IF the expert
    
    • relied on the treatise in developing her own opinion
    • OR acknowledged on cross that it is a reliable authority

Question 9

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

Answer 9

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

• (BUT opinion must still be helpful to the jury)

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 10

Cross examination:

When can cross?

Proper subject matter?

How?

Answer 10

When: 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 striken at the minimum)

Proper subject matter:

1. Matters w/in scope of DIRECT examination; AND
   
   • ex: if act about K formation on direct, cant ask about damages
2. Matters that test the witness’s CREDIBILITY

How: can ask leading questions

Question 11

Impeachment:

Who may impeach a witness?

(NY Distinction)

Answer 11

FRE: Either party may impeach any witness (direct or corss)

_NY: _

• General: party canNOT impeach own W
• Exception: can impeach w/ prior inconsistent statement IF:
  
  • 1. Made in writing, signed by W
  • 2. Criminal trial & testimony is affirmatively damaging to party’s case
       * (I forget is NOT affirmatively damaging)

Question 12

Rehabilitation

When can a party impeach or bolster witness’ credibility?

How?

NOTE: NY Distinction

Answer 12

When: Cannot rehabilitate W until credibility is attacked (impeachment)

• Improper Bolstering includes:
  
  • i) Improper rehabilitation
    
    • *must wait for attack on W’s credibility
  • ii) Inadmissible prior consistent statement
    
    • ​*must wait for attack- motive to lie/bias

[n/a for Hearsay exclusions (offered as substantive)

• prior identification of a person
  
  • requires: i) W to testify at trial + ii) be available for cross
    
    • (ex: if police officer observed prior id, he cannot take stand to testify re: id)
  • ​NY: hearsay exception
  • FRE: Hearsay exclusion (not hearsay)]

How: depends upon attack

• If attack character for truthfulness –> good character
  
  • MS: reputation/opinion
  • NY: reputation only
• If accused of bias/motive –> prior consistent statement before reason to lie developed
  
  • MS: substantive & rehabilitative
  • NY: rehabilitative ONLY

Question 13

What are the 7 impeachment methods?

How?

Answer 13

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

General how: confront the OR extrinsic evidence

1. Prior inconsistent statements
   * NY: MUST confront W before offer extrinsic
2. Bias, interest, or motive to misrepresent
   * MBE: MUST confront W before offer extrinsic evid
3. Sensory deficiencies
4. Bad opinion/reputation for truthfulness
   * NO extrinsic evidence
5. Criminal convictions (felony OR any crime relating to truthfulness)
6. Bad prior acts (w/o conviction that reflect adversely on witness’s truthfulness )
   * NO extrinsic evidence if collateral (
7. Contradiction

Question 14

What are the 2 ways to use the impeachment methods?

Answer 14

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 15

Impeachment:

by Prior Inconsistent Statement

[NY distinction]

Answer 15

Definition: witness previously made material statement (orally or in writing) that’s inconsistent w/ her trial testimony

General PUrpose: Impeachment [FRE & NY]

• CANNOT be used as SUBSTANTIVE evidence EXCEPTION: a prior inconsistent stmt can be used BOTH to impeach AND as substantive evidence,

BUT- remember hearsay exclusions/exceptions:

1. FRE: Prior Testimony can be SUBSTANTIVE (hearsay exclusion)

• IF the stmt was made
  
  • (i) orally under oath;
  • • (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)

1. Statement by a party opponent can be SUBSTANTIVE
   * Even if not under oath, comes in for its truth

Procedure:

• FRE 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 16

Impeachment:

“bias, interest or motive to misrepresent”

[NY Distinction]

Answer 16

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

• (lay foundation by asking W re: facts that give evidence of bias)

For NY, confrontation of witness is NOT REQUIRED

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

(other party may not counterattack by showing bias is justified)

Question 17

Impeachment:

Sensory deficiencies

Answer 17

= Anything that can effect witness’s perception OR memory

• Ex:bad eyes, bad hearing, being high

HOW: (general rule)

• Can be proven by extrinsic evidence
• Confrontation is NOT required

Question 18

Impeachment:

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

NOTE: NY Distinction

Answer 18

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

How:

• Confrontation is NOT req’d
• Extrinsic evidence…
  
  • Call character witness–> testify re:
    
    • NY: community reputation
    • FRE: character witness’s opinion of target witness’s character for truthfulness, OR community reputation
• NEVER with specific acts

Question 19

Impeachment:

W’s prior convictions?

NOTE: NY Distinction

Answer 19

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]

FRE: Permissible types of convictions:

1. Felony or misdemeanor for which the proscution was REQUIRED to prove FALSE STMT as an element of the crime
   
   1. (e.g. fraud, perjury, etc);
   2. PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old
   3. NOTE: judge has NO discretion to exclude
2. Any felony;
   
   1. PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old
   2. NOTE: judge may admit in his discretion (if there is danger that probative value will be substantially outweighed by unfair prejudice)

NY :

• any witness may be impeached with a conviction for ANY TYPE of crime,
  
  • regardless of how OLD the conviction is and w/o considering risk of unfair prejudice.
• EXCEPTION for CRIMINAL Ds as Ws:
  
  • ct may admit in its discretion
  • the ct must conduct a hearing to determine whether the probative value outweighs the danger of 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 currenly charged offense;
    • (ii) inflamatory nature of conviction (e.g. child molestation)

HOW:

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

Question 20

Impeachment:

Prior bad acts

NOTE: NY Distinction

Answer 20

Procedure:

• ONLY permitted with confrontation examination with good faith basis
• NO EXTRINSIC evidence allowed
  
  • (Can only ask abt the act and hope that the witness admits it; if not, you MUST move on);

FRE:

• 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)
• Whether to allow is in the _court’s discretion _

NOTE: Be careful of intersection w/ BIAS impeachment where extrinsic evidence IS admissible

NY:

• W = non-criminal D:
  
  • A witness may be asked abt ANY prior bad act that is vicious, criminal OR immoral (in the ct’s discretion)
    
    • EVEN IF the act does not relate to truthfulness
• W = CRIMINAL D
  
  • Ct MUST conduct hearing –> balance probative value (of bad act) vs. danger of unfair prejudice

Question 21

Impeachment:

Prior Bad act:

What is rationale of rule in NY?

Answer 21

NY:

W’s commission of any vicious, criminal or immoral act indicates a willingness to put self-interest above the interest of society. Therefore, the W is more likely to lie under oath

Question 22

Impeachment

Contradiction

Answer 22

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)

HOW:

• 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 23

What are 2 methods a party can use to rehabilitate an impeached witness? NOTE: NY Distinction

Answer 23

A witness may be rehabilitated ONLY AFTER the witness’ credibility has been attacked thru impeachment 2 methods to rehabilitate: 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 REPUATION 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 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!) NY DISTINCTION: admissable ONLY TO rehab (NOT as substantive evidence)

Question 24

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

Answer 24

An adverse inference instruction 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

In NY this is allowed IF:

• the witness in question has MATERIAL KNOWLEDGE to the trial;
• 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 the witness is AVAILABLE to testify

Question 25

Expert Testimony:

Can it embrace the ultimate issue?

Answer 25

YES

Exception: mental state

Question 26

Objections in Depositions:

What objections are waived if not made at the time?

Answer 26

Waived:

NOT waived:

• Hearsay
• Relevancy

Question 27

Witness Competency

What makes a witness competent?

Answer 27

1. Has personal knowledge (based upon sensory experience) of the relevant subject
2. Testifies under oath & understands obligation to speak truthfully
   * exception: children need not swear IF understand obligation to speak truthfully

Question 28

Impeachment by criminal conviction:

When can’t you use criminal conviction to impeach W?

Answer 28

(can impeach w/crimes fo rwhich appealing)

• Juvenile offenses:
  
  • if W = D –> never comes in
  • if W is not D –> does not come in UNLESS judge determines:
    
    • a) the conviction is necessary to determine the guilt/innocence of D
    • +b) would be admissible if committed by adult
• Conviction obtained in violation of W’s 6th Amendment right
  
  • (counsel, confront W)
• Crimes for which later pardoned based upon
  
  • innocene
  • OR if W has not been convicted of subsequent crime punishable by one+ years imprisonment
• f

Question 29

Impeachment of non-available hearsay declarant:

What means?

Answer 29

ANY methods that would be available if declarant were present at trial

• *Suspends foundational requirement re: prior inconsistent statements
  
  • (hearsay declarant who is unavailable at trial need not be given opportunity to explain/deny)