Witnesses

Question 1

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

NOTE: NY Distinction

Answer 1

Purpose: Death seals lips of 1 party, DMS seals lips of other by making him incompetent to testify
5 elements…
1) In a civil action
2) an interested party
3) IS incompetent to testify in own interest
4) against a decedent’s estate
5) concerning communications/personal trxns between decedent and interested party

NOTE: under the FRE (thus MBE) there is NO DMS, so assume a witness is NOT incompetent unless the q states that this jx DOES have a DMS

**NY DISTINCTION: NY has a DMS but there is an AUTO Exception — In an AUTO accident case based on NEGLIGENCE, the surviving interested party:
1. MAY testify about his observations re: the decedant’s conduct/demeanor;
BUT
2. 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 2

LEADING QUESTIONS

When are leading questions allowed to be asked?

Answer 2

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

Generally:

(i) NOT ALLOWED on DIRECT EXAMINATION of a witness
(ii) IS allowed on CROSS-EXAMINATION of a witness

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 (based on declaration from the ct)
4) Adverse party or someone under cntrl of adverse party

Question 3

LAY WITNESS TESTIMONY

When are lay witnesses’opinions admissible?

Answer 3

Lay witnesses’ opinions are admissible IF:

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

Areas where lay witnesses’ opinion usually admissible: (i) Drunkenness OR soberiety

(ii) Speed of vehicle
(iii) Odors
(iv) Sane OR insane
(v) Emotions of another person
(vi) Handwriting (Normal Course)
(vii) Opinion abt character (when permitted)

Question 4

COMPETENCY OF WITNESS IN GENERAL

What are the 2 competency requirements for a witness to be deemed competent?

NOTE: NY Distinction for children

Answer 4

A competent witness needs…

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
NOTE: for children, the general rule is that a child of ANY age may testify under oath IF the child understands and appreciates the duty to tell the truth

**NY DISTINCTION: Civil cases: a child MUST be able to testify under oath

Criminal cases: A child UNDER THE AGE OF 9, who cannot understand the duty of an oath MAY STILL TESTIFY (i.e. unsworn testimony), BUT a ∆ CANNOT be convicted SOLELY on the unsworn testimony of a child (i.e. there must be corroborating evidence)

Question 5

WRITINGS IN AID OF ORAL TESTIMONY

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

NOTE: NY Distinction

Answer 5

WRITINGS are allowed to AID oral testimony when used in:

1) REFRESHING RECOLLECTION

Basic rule: A Witness CANNOT read from a doc…

…BUT: 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

…PROVIDED the following safeguards against abuse are followed
Adversary has a right to:
(1) inspect the refesher;
(2) use it on cross-examination; and
(3) introduce it into evidence
—————————————————————————
2) PAST RECOLLECTION RECORDED (Hearsay Exception):
IF memory fails witness, and can’t testify, the atty MAY read (but not introduce as evidence) a supporting document, IF…
(i) first showing the doc fails to jog witness’s memory;
(ii) the witness had personal knowledge when doc created;
(iii) writing was EITHER (1) made; OR (2) adopted by witness;
(iv) writing was made/adopted when event fresh in witnesses’s mind; AND
(v) witness can vouch for accuracy of doc when made

**NY DISTINCTION: if factors established above, the writing MAY BE SHOWN to the jury (as opposed to just READING it to the jury as allowed under FRE)

Question 6

REQUIREMENTS FOR EXPERT TESTIMONY

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

Answer 6

The 4 requirements for expert testimony are…
1) Qualifications: education (academic degrees) 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 PROBABILITY OR CERTAINTY”, drawn from THESE permissible sources:
(a) personal knowledge (e.g. treating physician);
(b) evid. in trial record - made known to expert through hypo questions;
(c) facts outside recordIF 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
AND 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: Expert opinion MUST be relevant and reasonably reliable
Determined by ct based on 4 Factors: T-R-A-P
(T) Testing of principles or methodology
(R) Rate of error
(A) Acceptance by other experts in field (not necessarily
general acceptance)
***NY DISTINCTION: GENERAL acceptance is
required in relevant field if opinion based on science
(medicine, engineering, social psychology). But not
rqrd. if opinion solely based on expert’s opinion
(P) Peer review and publication

Question 7

Learned TREATISE IN AID OF EXPERT TESTIMONY

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

Answer 7

Aparty MAY invoke A hearsay exception to use a “learned treatise” in aid of expert testimony WHEN…

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: in BOTH SITUATIONS, the treatise is NOT admissible by itself; it CAN ONLY be read into evidence

• **NY DISTINCTIONS:
  1) On DIRECT examination of a party’s OWN expert: there is NO HEARSAY EXCEPTION for the contents of a learned treatise
• –i.e. it can ONLY be used to show the general basis if the expert’s testimony; CAN’T be substantive evidence [non-hearsay purpose]

2) On CROSS examination of opponent’s expert: the learned treatise may ONLY BE USED to IMPEACH the expert’s credibility (NOT as substantive evidence);
AND ONLY IF the expert relied on the treatise in developing her own opinion (ORacknowledged on cross that it is a reliable authority)

GUARANTEED BAR QUESTIONTHE NY CROSS DISTINCTION IS A BIG departure from FRE

Question 8

ULTIMATE ISSUES

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

Answer 8

Both an expert AND a 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
e. g. cannot say “It looked to me as if the Δ was engaged in conduct constituting a reckless disregard for the safety of others.

NOTE: If the question is if the testimony is objectionable and the answer choice says: “Yes, b/c Witness is testifying to the ultimate issue” THEN this answer choice will be WRONG

Question 9

CROSS-EXAMINATION

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

BOLSTERING OWN WITNESS

How and when can aparty impeach or bolstertheir OWN witness?

NOTE: NY Distinction

Answer 10

GENERAL RULE:
1) Bolstering own witness isNOT allowed until witness’s credibility is attacked (impeached)

No prior consistent statements allowed on direct (hearsay and limited probative value)

Post Impeachment repair of credibility is called REHABILITATION

EXCEPTION: the witness’s prior ID of a person (“I picked ∆ out of a line up”) comes in as SUBSTANTIVE evidence; PROVIDED the witness must testify at TRIAL and must be subject to CROSS examination
e.g. if party is out of town at trial then police officer cannot testify about the witness picking ∆ out of a line up

2) Impeaching own witness is allowed by ANY method of impeachment AND it is allowed on DIRECT and on COSS

• ***NY DISTINCTION: general rule is that a party MAY NOT impeach their OWN witness EXCEPTION: A party may impeach their own witness with a prior inconsistent stmt BUT ONLY IF it was
  (i) made in writing and signed by witness; OR
  (ii) made in oral testimony under oath; AND
  (iii) IF a CRIMINAL case, THEN the witness’s inconsistent testimony is AFFIRMATIVELY DAMAGING to the party that called the witness (vs. not helpful testimony or cloudy testimony – i.e. saying “i don’t recall” at trial after having earlier made a recollection of the exact fact is not helpful but it is also not damaging)

Question 11

IMPEACHMENT METHODS

What are the 7impeachment methods?

Answer 11

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

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

IMPEACHMENT PROCEDURE

What are the 2 ways to use the impeachment methods?

Answer 12

1) CONFRONT THE WITNESS:
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)

NOTE: EXTRINSIC EVIDENCE allowed for all impeachment methods EXCEPT:

6. Bad acts (w/o conviction that reflect adversely on witness’s truthfulness )
7. Contradiction

NOTE: 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:
2. Bias – must first confront the witness wrt BIAS

• ***NY DISTINCTION:
  1. Prior inconsistent statements – must first confront the witness wrt prior inconsistent stmts

Question 13

How does the “prior INCONSISTENT stmt” impeachment method work?

NOTE: NY Distinction

Answer 13

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

Generally, prior statement ONLY admissible 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

**NY DISTINCTION: this exception DOES not exist in NY, prior inconsistent stmt can ONLY be used to IMPEACH

Procedure:
For MBE: 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 from the 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 from the OPPOSING PARTY

NOTE: MBE and NY — a prior inconsistent stmt can be used BOTH to IMPEACH AND as SUBSTANTIVE evidence, IF the stmt was made by a witness from the OPPOSING PARTY

Question 14

How does the “BIAS, INTEREST or MOTIVE to MISREPRESENT” impeachment method work?

NOTE: NY Distinction

Answer 14

1. Bias, interest, & motive to misrepresent are all critical issues…
   2a. For MBE, witness MUST be confronted while on stand
   2b. **For NY, confrontation of witness is NOT REQUIRED
2. Can be proven by extrinsic evidence

Question 15

How does the “sensory deficiencies” impeachment method work?

Answer 15

1. Anything that can effect witness’s perception OR memory is usable (e.g. bad eyes, bad hearing, being high)
2. Can be proven by extrinsic evidence
3. Confrontation is NOT required

Question 16

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

NOTE: NY Distinction

Answer 16

1. Bad community reputation OR witness’ opinion that another witness has bad character for truthfulness
   2) Confrontation is NOT req’d
2. Can be proven by extrinsic evidence

To bring in extrinsic evidence…
Call character witnessto testify abt
(i) target witness’s community reputation OR
(ii) the character witness’s opinion of target witness’s character for truthfulness,

butNEVER with specific acts

NY DISTINCTION: character witness can ONLY testify abt community reputation (NOT opinion)

Question 17

How does the “criminal conviction” impeachment method work?

NOTE: NY Distinction

Answer 17

1. 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 gult]

Permissible types of convictions:
(i) Conviction of ANY crime (felony or misdemeanor)as to which the prosecution was REQUIRED to prove FALSE STMT as an element of the crime (e.g. fraud, perjury, etc); PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old

NOTE: judge has NO discretion TO EXCLUDE once this test is met

(ii) Conviction of any type of FELONY;PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old

NOTE: judge may exclude in his discretion (if there is danger of unfair prejudice vs. probative value)

Methods of proof:

2. Ask witness to admit prior conviction; OR
   2) Introduce record of conviction as extrinsic evidence (WITHOUT confrontation)
   - —————————————————————————–
   * ***NY DISTINCTION: any witness may be impeached with a conviction for ANY TYPE of crime, REGARDLESS of how OLD (NO TIME FRAME) the conviction is and WITHOUT balancing probative value vs. unfair prejudice.

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 (murder is more
probative of credibility than marijuana conviction);
(ii) crime’s relation to trust and deception (theft is
more probative than reckless driving)

Factors that make a conviction unfairly prejudicial:
(i) similarity to the currently charged offense (the
prejudice is particularly high if the prior offenses and
the charged offenses are identical);
(ii) inflammatory nature of conviction (child
molestation is more prejudicial than DWI)
————–ENDNY DISTINCTION*————–

Question 18

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

NOTE: NY Distinction

Answer 18

1. 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)
2. Procedure: ONLY permitted with CONFRONTATION on CROSS examination with good faith basis Whether to allow is in the ct’s DISCRETION
3. (i) When using bad acts to show deceit or dishonesty, NO EXTRINSIC evidence is permitted for the purpose of
   showing bad character for truthfulness.
   —Can only ask abt the act and hope that the witness admits it; if not, you MUST move on;
   (ii) Also, 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 ONLY and NOT its consequences, such as job termination, civil judgment, or arrest.
   e.g can say “did you lie on your taxes in 2012?” but CANNOT say, “Did you stand trial in 2013 for lying on your 2012 taxes?”
   BUT….
   GUARANTEED BAR QUESTION TRICK: VERY IMPORTANT—BE CAREFUL of intersection w/ OTHER 1-5 impeachment reasons where extrinsic evidence IS admissible—

e. g.Proof of a prior bad act with extrinsic evidence may be allowed if the bad act is relevant for some purpose other than bad character for truthfulness, such as to show the witness’s bias.
e. g. could ask about an arrest not to show bad act of the witness but to show that the witness may have a motive to testify favorably for the prosecution

**NY DISTINCTION: A witness may be asked abt ANY prior bad act that is viscous, criminal OR immoral (in the ct’s discretion) EVEN IF the act does not relate to truthfulness
…BUT…
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

1. 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)
2. 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)…BUT it will be allowed if the contradiction is relevant to the case OR to the Witness’s credibility
   e. g. Witness insisting on Cross that his direct testimony re: a tree at an intersection and a working traffic light were accurate.—In this case the defense attorney must leave the tree stmt alone b/c it is a trivial contradictory fact BUT she can properly call a police officer to testify that the traffic light at the intersection was not functioning

Question 20

WITNESS REHABILITATION

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

Answer 20

A witness may be rehabilitated ONLY AFTER the witness’ credibility has been attacked thru impeachment

METHOD # 1) Showing witness’s good character for truthfulness

When: Rehab ONLY available when impeachment CLEARLY suggested witness was lying (NOT just mistaken)
E.g., Methods 4-6 —Bad reputation/opinion, criminal conviction, bad acts w/o conviction

How: A Character witness can testify that impeached witness has a good character for truthfulness

Type of testimony allowed: May use:

(i) REPUTATION evidence or
(ii) OPINION evidence

**NY DISTINCTION: character witness can use REPUTATION evidence ONLY

METHOD #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 BUT ONLY IF the stmt was MADE before the motive to fabricate arose

E.g., if the witness said the same thing PRIOR to taking a bribe; this is admissable to show that the stmt was not a lie based on improper influence

NOTE: can be used to rehab an impeachment under any of the 7 methods

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: admissible ONLY TO rehab (NOT as substantive evidence

NOTE: METHOD #2 IS THE MOST COMMONLY TESTED OF THE TWO REHAB METHODS

Question 21

**NY ONLY

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

**NY ONLY

Answer 21

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:

(i) the witness in question has MATERIAL KNOWLEDGE to the trial;
(ii) the witness was expected to give testimony FAVORABLE to the party against whom the charge is sought (e.g. the witness is an employee and subject to the person’s cntrl); AND
(iii) the witness is AVAILABLE to testify