Witnesses Flashcards
General Rule of Competency (Rule 601)
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.
A court may excuse a witness if:
the probative value is outweighed by unfair prejudice
Lack of Personal Knowledge (Rule 602)
Lay vs. Expert Witness
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
Oath or Affirmation (Rule 603)
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.
Interpreters (Rule 604)
Qualified in the same way as an expert witness – they must also take an oath – language skill is their expertise
Competency of Judge as Witness (Rule 605)
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
Competency of Juror as Witness (Rule 606(a))
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
Inquiry into the validity of a verdict or indictment (Rule 606(b))
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
Examples where a juror’s testimony will be excluded:
(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.
A juror may, however, testify as to:
(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).
Examples where a juror’s affidavit will be admitted:
(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.
Who May Impeach (Rule 607)
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).
Collateral Matter Rule
Extrinsic evidence on collateral matters is Inadmissible to impeach – Applies to bad acts impeachments and prior inconsistent statement – derived from Rule 403
Extrinsic v. Intrinsic:
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.
Methods of Impeachment
Bias or prejudice:
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
Methods of Impeachment
Sensory defects
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).
Methods of Impeachment
Prior Inconsistent Statements
Methods of Impeachment - Character
(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)
A witness’ character for untruthfulness is always material and may be attacked by:
Using reputation, opinion, and extrinsic evidence
Collateral rule doesn’t apply
A witness’ character for truthfulness can be shown
by reputation or opinion evidence only if the witness’ credibility for truthfulness has been attacked – no bolstering in advance
Cross-examination about specific acts:
Which tests the opinion or reputation is permissible which reflect on truthfulness such as perjury or fraud that would be acceptable
Bad Act Impeachment.
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).
Examples of proper types of bad acts:
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).
Examples of improper types of bad acts (that have nothing to do with “truthfulness or untruthfulness”):
(a) use of drugs or alcohol;
(b) failure to pay debts;
(c) gambling, prostitution;
(d) sexual misconduct.
Limitations on Bad Act Impeachment
(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.
Collateral Matter Rule/Doctrine
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.
Impeachment by Evidence of Conviction of Crime
Types
Felonies and crimes involving dishonesty or false statement
Felonies are:
Crimes punishable by death or imprisonment exceeding a year
If a felony conviction is used to impeach a witness other than the accused:
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
If a felony conviction is used to impeach the defendant (i.e., accused):
The conviction will be admitted if the prosecution shows that the probative value substantially outweighs the prejudicial effect
Crimes involving dishonesty or false statement
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
FRE 609(b) 10-Year Rule:
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).
Juvenile Adjudications
(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
A conviction under appeal:
Is admissible – evidence that it is under appeal is admissible by the defendant
If a defendant has been pardoned from a conviction, it is
no longer admissible to impeach.
Arrest records, indictments, and other charges:
Inadmissible under FRE 609
Guilty pleas are
admissible to impeach.
Defendant can hide prior convictions by not testifying, however…
But the convictions would be admissible at sentencing
Can you ask a character witness if his opinion would change if he knew defendant was guilty?
NO! Improper question to impeach
Religious Beliefs or Opinions (Rule 610)
Inadmissible to impair or enhance credibility
Role of the Judge in Examination of Witnesses
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.
Leading Questions: Rule 611(c)
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
Circumstances in which leading questions may be appropriate on direct examination include:
(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
Writing Used to Refresh Memory (Rule 612)
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.
Rights of adverse party when writing is used to refresh memory
(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.
Steps of refreshing (procedurally):
(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.
Where privileged material is used to refresh, the court will rule that:
a waiver has occurred and allow the adverse party to inspect
Prior Statement of Witness (Rule 613)
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
Foundation requirement for PINS
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.
If the prior statement was not given under oath, it may…
Only be used for impeachment.
Note: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement.
Exclusion/Sequestration of Witnesses (Rule 615)
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.
Exception to Sequestration Rule
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
If the court fails to exclude:
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
