Witnesses Flashcards
Special witness examples
4
(1) Child witness: No particular age required.
(2) Attorney
(3) Alcoholic/drug addict
(4) Presiding judge
A court may excuse a witness if:
if the probative value is outweighed by unfair prejudice
If a state has a Dead Man’s Statute:
precludes evidence of a conversation between a dead man and a witness
Scope of testimony and requirements
(1) Lay witness must have:
(2) Expert witness:
lay = must have first hand knowledge
expert = personal knowledge is not required
who cannot testify in a case
2
- the presiding judge may not testify in the trial
- objection is automatic - A juror may NOT testify as a witness before the jury of which he is a member.
What must a witness do to testify?
A witness must declare to testify truthfully by oath or affirmation “in a form calculated to awaken his conscience.”
How is an interpreter qualified?
The same way as an expert and must take an oath or affirmation
What may a juror testify to?
3
(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).
A juror cannot testify to
3
- any statements made during deliberations
- thought processes
- votes taken during the verdict
Examples where a juror’s testimony will be EXCLUDED when challenging a verdict
(1) Juror misunderstood the evidence or the instructions.
(2) Jury reached its verdict improperly (drawing straws 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.
Who may impeach a witness?
The credibility of a witness may be attacked by any party, including the party calling him.
What is a collateral matter?
evidence solely affecting the credibility of a witness
Three forms of an impeachment?
- you’re a liar
- you’re mistaken
- you’re biased
When questioning a witness about a collateral matter, the party cross examining the witness:
is bound by the witnesses answer
Extrinsic evidence on a collateral matter is inadmissible to impeach
Extrinsic evidence on a collateral matters is
inadmissible to impeach (you are stuck with their answer)
Methods of Witness Impeachment
4
- Bias or Prejudice
- Sensory Defects
- Prior Inconsistent Statements
- Impeaching Character of Witness
What does the collateral matter not apply to?
- Bias or prejudice impeachment
- Sensory defects
- Character for untruthfulness
Bias or prejudice impeachment examples?
4
- Family
- Business relationships
- Confidential Informants
- Fee Arrangement
What are sensory defects used for impeachment
Inability to observe, communicate, or remember is always relevant, never collateral.
Four ways to impeach character of a witness?
(1) Reputation or opinion: Rule 608(a)
(2) Bad acts: Rule 608(b)
(3) Felony convictions in general: Rule 609(a)(1)
(4) Specific convictions of crimes involving dishonesty or false statement: Rule 609(a)(2)
A witness’s character for untruthfulness may be attacked by?
2
(1) Extrinsic Reputation or opinion evidence
Either party may call a witness in both civil and criminal cases. Can call an extrinsic witness to testify as to witnesses truthfulness
(2) Cross-examining the witness about specific acts (fraud, perjury) which reflect on his truthfulness
A witness’s character for truthfulness can be shown by reputation or opinion evidence ONLY IF
the witnesses character for truthfulness has been attacked.
Cannot bolster in advance
What are the limitations on the Bad Act Impeachment of witnesses
(a) a question;
(b) on cross-examination;
(c) inquiring into prior unconvicted acts bearing on (un)truthfulness (or dishonesty).
(d) you are stuck with the ∆’s answer; cannot have intrinsic evidence
Bad Act impeachment cannot be?
2
Too remote in time
Based on rumors
Impeachment by Evidence of Conviction of Crime applies in
All cases to all witnesses
Impeachment by Evidence of Conviction of Crime categories
2
Felonies: punishable by death or imprisonment over 1 year
2. Crimes involving dishonesty or false statement
Impeachment by Evidence of Felony for a witness other than the accused, the conviction will be admitted if:
excluded if the probative value is substantially outweighed by unfair prejudice
403 balancing test
Impeachment by Evidence of Felony for a ∆witness, the conviction will be admitted if:
The prosecution shows
-The probative value outweighs the prejudicial effect
Impeachment by Evidence of conviction of a crime involving dishonesty or false statement, the conviction will be admitted if:
(2)
It is a matter of right, there is no balancing
It must have happened within the last 10 years
E.g. Perjury Forgery Larceny by Trick Tax Evasion Fraud False Pretenses
≠ assault, drug cases, theft, prostitution
What is the 10 year rule?
-exception
Convictions more than 10 years old (> conviction v. date of release) are inadmissible to impeach unless:
The probative value substantially outweighs the prejudicial effect –> if so, notice must be given to the opponent
how the 10 years is measured: Impeachment with a conviction that is not more than 10 years old is based on either:
(2)
(1) the date of conviction; or
2) the date of release from confinement, whichever is later (i.e., more recent
Rule on using juvenile adjudication to impeach?
2
- inadmissible against the accused
2. discretionary against all other witnesses
Using Arrest records, indictments, and other charges to impeach a witness?
are inadmissible
Can guilty pleas be used to impeach a witness?
Yes
Can suppressed evidence be used to impeach a witness?
Cannot be used at trial but can be used a sentencing
Defendant can hide prior convictions by
not testifying
Can you ask a character witness if his opinion would change if he knew defendant was guilty?
No
Evidence of a witness’s religious beliefs for impeachment?
Cannot use to bolster or tear down a witness
Can jurors ask questions of witnesses?
Yes, in federal court
When are leading questions not allowed?
2
- Generally not on direct
2. when the examiner and the witness are on the same side
Circumstances in which leading questions may be appropriate on direct examination include:
(5)
(a) hostile witness;
(b) adverse witness (when not on the same side);
(c) child witness;
(d) preliminary background information;
(e) to refresh recollection.
Scope of cross-examination is limited to
2
the scope of direct examination
+
matters affecting credibility
When may you refresh/jog a witness’s memory?
- can use on direct evidence
- can use anything: writing, photograph, further questioning, or other form of evidence will suffice ANYTHING
- If they are refreshed, they can keep going (only intrinsic evidence is used because the evidence is his own memory)
≠ introduction into evidence/authentic not in writing
What can the adverse party do when you refresh/jog a witness’s memory?
(4)
What about when privileged material is used to refresh?
(1) may inspect;
(2) cross-examine with it;
(3) show writing to the jury for comparison (with witness’s testimony);
(4) introduce relevant portions into evidence ONLY to IMPEACH
If privileged, then waiver of the privilege has occured
Steps of refreshing (procedurally)
5
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.
Difference between present memory refresh and past recollection recorded?
intrinsic evidence v. extrinsic evidence
What is a prior inconsistent statement to impeach?
Admissible only to impeach*
- Not sworn
- Oral or written
- Contents need not be shown to witness (on request must be shown to opposing side)
Foundation requirement: Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided:
(2)
(1) the witness is afforded an opportunity to explain or deny at some point
(2) opposing counsel is afforded an opportunity to interrogate the sponsoring witness (the witness that could testify to the prior inconsistent statement)
If witness denies making a prior inconsistent statement?
If witness admits making a PINS?
(3) If the witness DENIES making the PINS, extrinsic evidence is generally admissible TO IMPEACH.
(4) If the witness ADMITS making the PINS, the witness has the right to explain his answer.
If a prior statement was not given under oath, it can only be used fo
impeachment
Can the court call witnesses?
Yes, parties get to examine witnesses called by the court
Can the court question witnesses?
Yes, any witness called
What is Sequestration of Witnesses?
Who cannot be sequestered?
If the court fails to sequester?
At the request of a party, the court shall remove witnesses from the court room so they do not hear other’s testimony
- party
- essential witnesses
- exempted by statute
IT is error if the court fails to exclude
If a court fails to sequester a witness, the remedy is
a mistrial
