Witnesses

Question 1

General Rule of Competency (Rule 601)

Answer 1

Every person is competent to be a witness.

Special witness examples:

(1) child witness: no particular age required;
(2) insane witness;
(3) attorney;
(4) alcoholic/drug addict.
(a) All of these can testify, but not the Judge.

Question 2

A court may excuse a witness if:

Answer 2

the probative value is outweighed by unfair prejudice

Question 3

Lack of Personal Knowledge (Rule 602)

Lay vs. Expert Witness

Answer 3

A witness may only testify to matters about which he has personal knowledge.

Lay witness: Must have personal knowledge to testify under 602 and must have personal knowledge to give an opinion

Expert witness: Not required to have personal knowledge

Question 4

Oath or Affirmation (Rule 603)

Answer 4

A witness must declare to testify truthfully by oath/affirmation in a form calculated to awaken his conscience

If a witness refuses to take an oath for religious reasons, the judge shall not allow witness’ testimony.

Question 5

Interpreters (Rule 604)

Answer 5

Qualified in the same way as an expert witness – they must also take an oath – language skill is their expertise

Question 6

Competency of Judge as Witness (Rule 605)

Answer 6

A presiding judge may not testify in that trial as a witness – broad rule to preserve impartiality and avoid confusing the jury

Objections: Is automatic and need not be made

Question 7

Competency of Juror as Witness (Rule 606(a))

Answer 7

A juror may not testify as a witness before the jury of which he is a member.

Objections to a juror’s testimony: should be heard outside the presence of a jury

Question 8

Inquiry into the validity of a verdict or indictment (Rule 606(b))

Answer 8

A juror may not testify as to the manner in which the jury reached its decision. Affidavits by jurors are also excluded.

This rule includes:

(a) Any statements made during deliberations
(b) Thought processes by which the jurors reached their decision
(c) Any votes taken

Question 9

Examples where a juror’s testimony will be excluded:

Answer 9

(1) Juror misunderstood the evidence or the instructions.
(2) Jury reached its verdict improperly (drawing lots or quotient verdict).
(3) MBE: Jurors drank alcohol and smoked marijuana during deliberations.
(4) One juror physically bullied another regarding his vote.
(5) Juror fell asleep during deliberations.

Question 10

A juror may, however, testify as to:

Answer 10

(1) extraneous prejudicial information improperly brought to the juror’s attention;
(2) whether any outside influence was improperly brought to bear on any juror; or
(3) clerical/secretarial error (i.e., mistakes on the verdict form).

Question 11

Examples where a juror’s affidavit will be admitted:

Answer 11

(1) A juror may be questioned regarding whether or not someone brought in a newspaper article about the case.
(2) Juror made an unauthorized visit to the scene.
(3) Juror accepted a bribe.
(4) Juror conducted his own out-of-court experiment regarding evidence presented at trial.
(5) Threats of harm made against the juror or juror’s family members.
(6) Communication by juror with court personnel regarding the case.
(7) Juror brought a bible into the courtroom and read passages to other jurors suggesting defendant’s guilt.

Question 12

Who May Impeach (Rule 607)

Answer 12

The credibility of a witness may be attacked by any party, including the party calling him (for example, where the witness’ testimony surprises and damages the examining party).

Question 13

Collateral Matter Rule

Answer 13

Extrinsic evidence on collateral matters is Inadmissible to impeach – Applies to bad acts impeachments and prior inconsistent statement – derived from Rule 403

Question 14

Extrinsic v. Intrinsic:

Answer 14

Questioning from the mouth of the witness on the stand is intrinsic; all other impeachment (i.e., writing; certified copy of a conviction; calling in another witness to the stand) is extrinsic.

Question 15

Methods of Impeachment

Bias or prejudice:

Answer 15

No specific Federal Rule. Always be material – Collateral matter rule doesn’t apply – extrinsic evidence is admissible to impeach

Examples:

(a) Personal family hostility or relationship
(b) Business relationship
(c) Financial interest
(d) Fee arrangement

Question 16

Methods of Impeachment

Sensory defects

Answer 16

Inability to observe, communicate, or remember is always relevant, never collateral. Extrinsic evidence is permitted. However, it is generally not allowed as to whether witness is addicted to drugs or alcohol (unless immediately connected to witness’ credibility).

Question 17

Methods of Impeachment

Answer 17

Prior Inconsistent Statements

Question 18

Methods of Impeachment - Character

Answer 18

(1) Reputation or opinion: Rule 608(a)
(2) Bad acts: Rule 608(b)
(3) Felony convictions: Rule 609(a)(1)
(4) Convictions of crimes involving dishonesty or false statement: Rule 609(a)(2)

Question 19

A witness’ character for untruthfulness is always material and may be attacked by:

Answer 19

Using reputation, opinion, and extrinsic evidence

Collateral rule doesn’t apply

Question 20

A witness’ character for truthfulness can be shown

Answer 20

by reputation or opinion evidence only if the witness’ credibility for truthfulness has been attacked – no bolstering in advance

Question 21

Cross-examination about specific acts:

Answer 21

Which tests the opinion or reputation is permissible which reflect on truthfulness such as perjury or fraud that would be acceptable

Question 22

Bad Act Impeachment.

Answer 22

Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’ credibility.

Three elements:

(a) a question;
(b) on cross-examination;
(c) inquiring into prior unconvicted acts bearing on (un)truthfulness (or dishonesty).

Question 23

Examples of proper types of bad acts:

Answer 23

filing a false tax return; putting incorrect information on an employment application; forgery; using a false name; falsifying a resume or academic record; lying about age, marital status, employment; cheating at cards (recent MBE example).

Question 24

Examples of improper types of bad acts (that have nothing to do with “truthfulness or untruthfulness”):

Answer 24

(a) use of drugs or alcohol;
(b) failure to pay debts;
(c) gambling, prostitution;
(d) sexual misconduct.

Question 25

Limitations on Bad Act Impeachment

Answer 25

(a) Questions must be probative of truthfulness.
(b) Questions must be asked in good faith.
(c) The bad acts cannot be too remote in time.
(d) Only questions of fact are allowed: not rumors, nor arrests.
(e) Judge has discretion to exclude.

Question 26

Collateral Matter Rule/Doctrine

Answer 26

If the witness lies about the specific instance, collateral matter rule applies. Extrinsic evidence is inadmissible to prove the prior dishonest act. The examiner is bound by the witness’ answer. E.g., Isn’t it true you cheated on your spouse? If witness says “No,” you may not bring in extrinsic evidence.

Question 27

Impeachment by Evidence of Conviction of Crime

Types

Answer 27

Felonies and crimes involving dishonesty or false statement

Question 28

Felonies are:

Answer 28

Crimes punishable by death or imprisonment exceeding a year

Question 29

If a felony conviction is used to impeach a witness other than the accused:

Answer 29

1) A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).
2) Discretionary

Question 30

If a felony conviction is used to impeach the defendant (i.e., accused):

Answer 30

The conviction will be admitted if the prosecution shows that the probative value substantially outweighs the prejudicial effect

Question 31

Crimes involving dishonesty or false statement

Answer 31

Crimes involving dishonesty or false statement include both felonies and misdemeanors.

Admissible as a matter of right (i.e., no balancing), as long as they are less than or equal to 10 years old

Examples (admissible):
Perjury, counterfeiting, forgery, larceny by trick, tax evasion, false pretenses, criminal fraud, embezzlement, all other crimes involving DUF (Deceit, Untruthfulness, Falsification)

Examples (inadmissible):
Assault and battery, prostitution, gambling, DUI, possession of drugs, criminal trespass

Question 32

FRE 609(b) 10-Year Rule:

Answer 32

Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs its prejudicial effect

Time limit—Based on either:

(1) the date of conviction; or
(2) the date of release from confinement, whichever is later (i.e., more recent).

Question 33

Juvenile Adjudications

Answer 33

(a) Inadmissible against the accused if he testifies.
(b) For all other witnesses:
Discretionary – in Civil/Criminal cases it is inadmissible subject to the court discretion

Necessary for a fair determination for the issue of guilt/innocence

Question 34

A conviction under appeal:

Answer 34

Is admissible – evidence that it is under appeal is admissible by the defendant

Question 35

If a defendant has been pardoned from a conviction, it is

Answer 35

no longer admissible to impeach.

Question 36

Arrest records, indictments, and other charges:

Answer 36

Inadmissible under FRE 609

Question 37

Guilty pleas are

Answer 37

admissible to impeach.

Question 38

Defendant can hide prior convictions by not testifying, however…

Answer 38

But the convictions would be admissible at sentencing

Question 39

Can you ask a character witness if his opinion would change if he knew defendant was guilty?

Answer 39

NO! Improper question to impeach

Question 40

Religious Beliefs or Opinions (Rule 610)

Answer 40

Inadmissible to impair or enhance credibility

Question 41

Role of the Judge in Examination of Witnesses

Answer 41

The judge (the court) shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses.

The court also determines:

(1) what type of technology may be used;
(2) whether jurors can ask questions.

Question 42

Leading Questions: Rule 611(c)

Answer 42

Direct examination: Leading questions are not allowed – must ask open-ended questions

You can use leading questions on cross and limited to the scope of direct and maters affecting credibility

Question 43

Circumstances in which leading questions may be appropriate on direct examination include:

Answer 43

(a) hostile witness;
(b) adverse witness;
(c) child witness;
(d) preliminary background information;
(e) to refresh recollection;
(f) on cross-examination.

NOTE: Where the examiner and the witness are on the same side, Leading questions are not allowed

Question 44

Writing Used to Refresh Memory (Rule 612)

Answer 44

On direct, the examiner may jog the witness’ memory (i.e., the “forgetful witness”).

(1) The proponent may not introduce the writing into evidence.
(2) Neither the hearsay rule nor the best evidence rule applies to refreshing.
(3) Authentication of the writing is not required.
(4) Any writing, photograph, further questioning, or other form of evidence will suffice.

Question 45

Rights of adverse party when writing is used to refresh memory

Answer 45

(1) may inspect;
(2) cross-examine with it;
(3) show writing to the jury for comparison (with witness’ testimony);
(4) introduce relevant portions into evidence to impeach.

Question 46

Steps of refreshing (procedurally):

Answer 46

(1) Give a copy to the judge and opposing counsel.
(2) Mark it as an exhibit for identification only.
(3) Ask witness to silently read the document.
(4) Take back the writing.
(5) Ask witness to testify independently of the writing.

Question 47

Where privileged material is used to refresh, the court will rule that:

Answer 47

a waiver has occurred and allow the adverse party to inspect

Question 48

Prior Statement of Witness (Rule 613)

Answer 48

Under this rule, a prior inconsistent statement (PINS) is not “sworn” and is admissible only to impeach.

PINS may be: Oral or written

Its contents need not be shown to the witness at the time, but on request must be shown to opposing counsel

Question 49

Foundation requirement for PINS

Answer 49

Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is:

(1) Afforded an opportunity to explain or deny the evidence at some point during the trial
(2) Opposing counsel is afforded the opportunity to interrogate the witness unless the interest of justice require otherwise
(3) If the witness denies making the PINS, extrinsic evidence is generally admissible. Collateral matter rule does not apply.
(4) If the witness admits making the PINS, the witness has the right to explain his answer.

Question 50

If the prior statement was not given under oath, it may…

Answer 50

Only be used for impeachment.

Note: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement.

Question 51

Exclusion/Sequestration of Witnesses (Rule 615)

Answer 51

At the request of a party, the court shall order witnesses excluded so they cannot hear the testimony of the other witnesses

Purpose: To preserve the integrity of the witness’s testimony, to prevent fabrication or collusion, or to protect child witnesses.

Question 52

Exception to Sequestration Rule

Answer 52

This rule does not authorize exclusion of:

(1) Party or party’s representative will stay in court
(2) Essential person – Experts, Officer in charge
(3) Statutorily exempt – crime victims

Question 53

If the court fails to exclude:

Answer 53

It is error if the court fails to exclude.

Remedy:
Mistrial
Hold the witness in contempt
Complaining party must convince the judge that it was harmless error