Witnesses Flashcards
What are the basics a witness must have to be competent to testify?
1) Personal knowledge (Testify to what they saw with their eyes or heard)
2) Oath or affirmation (duty to testify to truth)
What is the NY rule for testimony by children?
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.
What is the civil/criminal distinction for testimony by children?
1) For civil a child must be able to testify under oath
2) In criminal, a child under 9 who cannot understand the duty of oath may still testify i.e. give unsworn testimony but a defendant cannot be convicted based solely on the unsworn testimony of the child. Must be corroborating evidence.
What is the dead mans statute (Multistate)?
1) Witness is not ordinarily incompetent merely because she has an interest - a direct legal stake - in outcome of the litigation
2) But some states have a dead mans statute which provides:
a) In a civil action b) an interested witness c) is incompetent to testify d) against the estate of a decedent e) concerning personal communications between the interested witness and the decedent. TO PREVENT PERJURY AGAINST DECEDENT’S ESTATE.
Under federal rules is there a dead mans statute?
No, on multistate, witnesses ordinarily are not incompetent. BUT where question explicitly states that the particular jurisdiction in which the case arises has a dead man’s statute.
What is the NY dead man’s statute?
The NY DMS is similar to the rule in most other states except there is a NY automobile exception.
What is the NY automobile exception?
In an auto accident case based on negligence, the surviving interested party may testify about their observations of decedent’s conduct BUT may not testify about oral statements made.
Are leading questions allowed?
Generally not allowed on direct examination of witness but are allowed on cross examination of witness.
What are the 4 exceptions to the general rule that leading questions are not allowed during direct examination of a witness?
1) Preliminary/intro matter
2) Youthful/forgetful witness
3) Hostile witness
4) Opposing party or control of opposing party
Can a witness use a written aid to refresh their recollection?
Basic rule is that a witness may not read from prepared memo because they must testify on the basis of their current recollection BUT if witness’s memory fails them, they may be shown a memo to jog their memory.
When your recollection is refreshed by a writing can you admit that into evidence?
No, you can be shown literally any writing to jog your memory but this writing is not introduced into evidence. The list may not be read into evidence either.
How do we safeguard against abuse of the ability to refresh recollection by written aids?
If the method is used, the adversary has a right to 1) inspect the memory refresher 2) use it on cross-examination and 3) introduce it into evidence.
What if i am shown a list, it doesn’t refresh my memory and i am still unable to testify on the basis of current recollection? Can my attorney read the list to the jury? Wouldn’t that then result in a hearsay objection?
There is a hearsay exception and foundation for reading contents of writing to jury if
1) showing writing fails to jog memory
2) witness had a personal knowledge at former time
3) writing was either made by witness or adopted by them
4) Making or adoption occurred while even still fresh in witnesses mind
5) Witness can vouch for accuracy of writing when made or adopted
If you establish the five factor foundation for reading contents of writing to jury (and exception to hearsay) can you also show it to jury? Can you admit as evidence?
In NY can show writing to them, in Multi can only read contents to them. Multi you cannot introduce as evidence, can in NY and can if you are the adversary.
Is the opinion of a lay witness admissible?
Yes, must be 1) rationally based on witness perceptions and 2) helpful to the jury.
What are examples of lay witness evidence that is admissible?
drunk/sober, speed of vehicle, handwriting, emotions of another person, sane/insane, odors, character (when permitted)
What are the requirements of an expert witness?
1) Qualifications
2) Proper subject matter
3) Basis of opinion
4) Relevance and reliability
5) learned treatise in aid of expert testimony (fed hearsay exception)
What qualifications must an expert state?
1) education degree and/or
2) experience
When does an expert have proper subject matter?
Scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact.
What is the basis of opinion the expert should have?
Expert must have an opinion based on a reasonable degree of probability or reasonable certainty and can draw on three data sources 1) personal knowledge, 2) other evidence in the trial record 3) facts not in evidence reasonably relied upon by experts in this field in forming opinions.
What are the relevance and reliability requirements to make evidence admissible?
To be admissible, the opinion must be relevant to the issue at hand and sufficiently reliable. The expert must use reliable methods and principles and reliably apply them to the facts of the case.
What is the Court’s role in acting as gatekeeper and determining reliability of the principles and methodology used by the expert?
TRAP, Testing of principles or methodology, Rate of error, Acceptance by other experts in same discipline (general acceptance not required), Peer review and publication.
What is the NY position regarding the court determining reliability of principles and methodology used by the expert?
1) if opinion based on science, the method or principle must have achieved general acceptance in relevant scientific field
2) Non-scientific opinion may be based on expert’s experience without need to satisfy general acceptance standard.
What is the ‘learned treatise in aid of expert testimony’ (Federal hearsay exception)?
1) On direct examination of party’s own expert, relevant portions of treatise, periodical or pamphlet may be read into evidence as substantive evidence if established as reliable authority
2) On cross examination, relevant portions of treatise may be read into evidence to impeach and contradict opponent’s expert. This also comes in as substantive evidence
IT MUST COME IN WITH TESTIMONY OF EXPERT. CANNOT BE ADMISSIBLE BY ITSELF. ALSO CANNOT BE INTRODUCED AS EXHIBIT. CAN ONLY BE READ TO JURY.
What is the NY position regarding learned treatise in aid of expert testimony?
1) On direct examination of party’s own expert, no hearsay exception for contents of learned treatise. Treatise may only be used to show general basis of expert testimony, not as substantive evidence.
2) On cross examination, the learned treatise may only be used to impeach the expert’s creditability AND only if the expert relied on the treatise in developing her own opinion OR acknowledged on cross that it is a reliable authority.
Is testimony that embraces the ultimate issue objectionable?
Its not objectionable just because it embraces an ultimate issue in the case BUT all other requirements for opinion testimony must be satisfied including the requirement that the opinion is helpful.
What is the federal rule on D’s mental state in criminal cases when an expert seeks to give direct opinion that D did or did not have relevant mental state?
Ultimate issue is still a proper objection if the expert deviates from just testifying in general terms about the effects of a D’s mental condition without linking it to a particular place. i.e. they cannot say D’s insanity prevented him from understanding that he was shooting at the victim in this case.
