Witnesses

Question 1

What is personal knowledge?

Answer 1

Saw it with your own eyes or heard it with your own ears .

Question 2

Why does the witness take an oath or affirmation?

Answer 2

Demonstrates a willingness to tell the truth, do not have to take oath can take an affirmation

Question 3

What is a “Dead Man’s Statute?”

Answer 3

The witness has a direct legal outcome in the case or litigation - 50% of states have this, and it only applies to civil cases and not criminal cases

• Generally the witness is not deemed incompetent merely because he has a stake in the case, unless there is a dead mans statute (usually this happens where one of the parties made a contract and is now deceased and the litigation hinges on the testimony of the other party)
• *In the Federal Rules of Evidence (FRE) and thus nn the multistate the presumption is that there is no incompetence, unless the question explicitly states that a dead man statute applies

Question 4

What is a leading question, and when is it not and when is it appropriate?

Answer 4

Form of question that suggests an answer, basically the lawyer states the facts and asks the witness to agree
-General Rule: Leading questions are not allowed on direct examination, and generally allowed on cross examination of a witness
EXCEPTIONS (for direct examination)
1. For preliminary and introductory matters, get things going
2. Youth or forgetful witness - jog the memory
3. Hostile witness
4. Witness is the adverse party or someone under the control of the adverse party (presumption of hostility)

Question 5

When are writings in aid of oral testimony allowed?

Answer 5

General Rule: The witness may not read from a prepared memo, must testify on the basis of his memory
EXCEPTION - However a written document (including a memo) may be used to jog the witnesses memory (once the memory is refreshed than the writing has served its purpose and can no longer be used, unless properly admitted into evidence)

Question 6

What are safeguards given to opposing counsel regarding writings in aid of oral testimony?

Answer 6

1. They are allowed to inspect the writing
2. The writing may be used on cross examination
3. They may introduce the writing into evidence

Question 7

What elements must be met to get the hearsay exception of past recollection recorded, when a writing fails to jog the memory of the witness?

Answer 7

General rule is that a recording may be read into evidence when:

1. Showing a writing to the witness fails to jog his memory; and
2. The witness had personal knowledge at a former time; and
3. The writing was either made by the witness or adopted by the witness; and
4. The making or adoption of the writing occurred while the writing was still fresh in the mind of the witness; and
5. Witness can vouch for the accuracy of the writing when it was made or adopted (it was accurate at that point in time)

Question 8

When is the opinion testimony of a lay witness admissible?

Answer 8

2 Parts:
1. When the witness has personal knowledge (rationally based on the witnesses own opinion); and
2. Must be helpful to the jury in deciding some issue (under the judges discretion)
Examples (allowed on the bar and over 100 years of common law):
a. Drunk/sober
b. The speed of a vehicle
c. Sane/insane
d. The emotions of another person
e. Odors
f. Handwriting
g. Character when permitted

Question 9

What are the qualifications for an “expert witness?”

Answer 9

2 Parts:

1. Must have education (degrees) on the topic; and/or
2. Practical experience

Question 10

What is the standard of knowledge the expert witness must have?

Answer 10

A reasonable degree of probability or reasonable certainty

Question 11

What are the permissible data sources that an expert may use?

Answer 11

3 Data Sources Generally:

1. Personal Knowledge
2. Other evidence admitted at the trial, e.g. testimony of other witnesses, admitted evidence (such as x-rays), made known to the expert by hypotheticals
3. Facts outside of the record (i.e. hearsay), it is out of court material of a type that is reasonably relied upon by experts in this field informing opinions (published works to better inform the witness) (the question is, do experts in this field typically rely on this information?)

Question 12

What is the Daubert test to determine reliability of the expert witness?

Answer 12

4 parts:

1. Testing of the principles and methods
2. Rate of Error - Obviously if high rate of error not as reliable
3. Acceptance - By other experts in the same discipline (general acceptance not required)
4. Peer Review and Publication - Adds to reliability

Question 13

When may an expert use a learned treatise to aid in his oral testimony?

Answer 13

1. On direct examination of a parties own witness
   a. And the substance of the material may be read into evidence if: it proves the truth of the matter asserted, and it established reliable authority
2. On cross examination of the opponents expert witness
   a. Read into evidence to impeach and contradict the opponents expert, read in as substantive evidence
3. The learned treatise may never be entered as an exhibit (only ever read to the jury)

Question 14

Which witness may be cross examined?

Answer 14

Any witness, if the witness is not allowed to be cross examined his testimony will become highly suspect and possibly stricken

Question 15

When is bolstering your witness allowed?

Answer 15

Only after their credibility has been attacked or impeached (reasoning: bolstering the credibility of a witness absent an attack only offers minimal probative value)
EXCEPTION: The witnesses prior ID of a person; and is not barred by hearsay rule (say the witness is on the stand and says that she sees the perpetrator in the courtroom and then states that she picked him out of line up), can come in as substantive evidence
***Note however that when the exception is invoked the witness must testify at trial and be subject to cross examination

Question 16

When can you impeach your own witness?

Answer 16

Anytime, even during direct examination

Question 17

What are the bases for impeaching a witness?

Answer 17

1. Prior Inconsistent statement
2. Bias, Interest, Motive to misrepresent
3. Sensory Deficiency
4. Bad Reputation or Opinion about witness’s character for truthfulness
5. Criminal Convictions
6. Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness
7. Contradiction

Question 18

What are the procedural ways used to impeach a witness? 2

Answer 18

1) Ask the witness about the impeaching fact with the aim of having the witness admit it (“confronting” the witness), or
(2) Prove the impeaching fact with “extrinsic” evidence (documentary
evidence or testimony from other witnesses).

Question 19

The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods

Answer 19

Yes
1. Prior Inconsistent statement
2. Bias, Interest, Motive to misrepresent
3. Sensory Deficiency
4. Bad Reputation or Opinion about witness’s character for truthfulness
5. Criminal Convictions
No
6. Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness
7. Contradiction

Question 20

For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced?

Answer 20

No - Except as to (2) bias

Question 21

What is a Prior Inconsistent Statement, and may a witness be impeached for giving one?

Answer 21

Yes, Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.

Question 22

When a prior inconsistent statement is introduced to impeach a witness what is the scope of its introduction?

Answer 22

GENERAL PURPOSE: The prior inconsistent statement is admissible only for the purpose of the impeachment only, (to suggest trial testimony is false or mistaken, not as substantive evidence that the statement is actually true).

Question 23

What is the exception that a prior inconsistent statement may be introduced to impeach a witness may go beyond that scope?

Answer 23

A prior inconsistent statement of a witness may be admitted both to impeach and as substantive evidence (to prove the truth of the matter asserted in the prior statement), if the witness is
1) currently subject to cross-examination; and
2) the prior inconsistent statement was made:
a) Orally and under oath and
b) As part of a formal hearing preceding trial or deposition
Context of live testimony
*Hearsay exception

Question 24

HYPO: Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for plaintiff that she saw the Suburban run the stop sign.

(a) On cross-examination, may Defendant’s counsel seek to establish that a few days after the accident, Witness told the police that the Jeep Cherokee, not the Suburban, ran the stop sign?
(b) If Witness admits she made the prior inconsistent statement, may Defendant use the statement as substantive evidence that the Jeep Cherokee, rather than the Suburban, ran the stop sign?
(c) What if Witness made her prior inconsistent statement about the Jeep Cherokee during a pretrial deposition in which she gave sworn testimony?

Answer 24

a) Yes - Classic example of prior inconsistent statement, which is it? - Statement is inconsistent
b) No - The prior inconsistent statement would be hearsay - it would go to impeach the witness only, can’t be offered to prove the truth of the matter asserted
c) Yes - Because made under oath, would be admissible for two purposes, impeach witness and admissible as substantive evidence

Question 25

Procedural Issue: Must Witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation?

Answer 25

Rule: Confrontation timing is flexible: Not required to immediately confront Witness. But after proof by extrinsic evidence, Witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement. - Note the exception - Exception: No opportunity to explain need be given if Witness is The opposing party Also, the prior inconsistent statement of an opposing party can be used against that party as substantive evidence (“party admission” or “statement of an opposing party”).

Question 26

HYPO: In auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant does not cross-examine her. During the defense, Defendant calls Joe the Bartender, who testifies that Plaintiff told him, at Joe’s bar a week after the accident, that she had NOT been wearing her seat belt.

(a) Should Plaintiff’s motion to strike be granted on the ground that Plaintiff was not given an immediate opportunity to explain or deny the inconsistency?
(b) Is Plaintiff’s statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?

Answer 26

a) Motion denied, no need to give any opportunity to this witness, this witness is the opposing party, therefore the def. is free to bring out extrinsic evidence, without worrying at all giving the witness the opportunity to come back
b) Yes - This was at Joes bar, informal and not under oath, but it is the opposing party (admissible for substance, its truth, substantive evidence)

Question 27

What is Bias, Interest, or Motive to Misrepresent?

Answer 27

Any fact that would give a witness a reason to show favoritism or bias to a party

Question 28

What are examples of Bias, Interest, or Motive to Misrepresent?

Answer 28

Witness is party; friend, relative or employee of party; expert witness being paid by party; person with grudge against a party, etc. Purpose: to suggest testimony is false, slanted, or mistaken in party’s favor.

Question 29

Procedural issues to Bias:

(a) Must witness be confronted with alleged bias while on the stand?
(b) If confrontation prerequisite is met, may bias be proven by extrinsic evidence?

Answer 29

a) Yes - Must confront while on the stand

b) Yes - Bias is extremely important to show

Question 30

Sensory deficiencies: Anything that could affect witness’s perception or memory. Examples: bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the witness stand. Purpose: to suggest mistake.

1. Confrontation required?
2. Extrinsic evidence allowed?

Answer 30

1. No
2. Yes - Go right ahead and show the witness had six shots of Jack DANIELS
   Next 3 methods (4-6) attack on the witnesses bad character for truthfulness (remember page 13, purpose 3, to attack truthfulness)
   -Now we are impeaching the witnesses testimony OR their character for truthfulness

Question 31

Bad Reputation or Opinion About Witness’s Character for Truthfulness, what witnesses are subject these methods of impeachment?

Answer 31

Any witness is subject to impeachment by this method.

Question 32

For Bad Reputation or Opinion About Witness’s Character for Truthfulness is confrontation required?

Answer 32

No

Question 33

For Bad Reputation or Opinion About Witness’s Character for Truthfulness is extrinsic evidence allowed?

Answer 33

Yes - only way to do it, you bring out a character witness and he testifies that the witness has bad character, reputation or own opinion Call a character witness to testify that Target Witness has bad reputation for truthfulness, or that character witness has low opinion of Target Witness’s character for truthfulness. Purpose: to suggest that Target Witness is not telling the truth on the witness stand.

Question 34

HYPO: For Bad Reputation or Opinion About Witness’s Character for Truthfulness: Larry testifies for the prosecution that he saw Defendant commit the crime. During the defense: Defendant calls Rev. Al to testify that Larry has a lousy reputation for truthfulness among members of Rev. Al’s congregation, and in Rev. Al’s opinion, Larry is not a truthful person.

(a) Admissible to suggest Larry’s testimony is false?
(b) May Rev. Al follow up his opinion as follows: “Let me tell you how I reached my opinion of Larry. During the past year, he lied to me on six separate occasions.”

Answer 34

(a) Yes - This is how it is done, procedurally

(b) No - Evidence of specific acts, only reputation or give an opinion, cannot recite specific acts

Question 35

Impeachment Methods for Criminal Convictions: what are they?

Answer 35

Purpose: to suggest testimony is false. Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Question 36

What are permissible types of convictions to impeach a convicted criminal?

Answer 36

Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove: False statement as an element of the crime (oral or written), the type of crime that involves the uttering of false words, perjury or fraud, not mere theft (truth telling type crime) (*Category of false statement is very narrow - Does not include theft, did not utter a false statement)
-Automatic Admissibility (the court has no discretion to exclude)

Question 37

May the court exclude evidence if the criminal was convicted of a felony that DID NOT include a false statement?

Answer 37

The court may exclude, in its discretion, if the probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt). Balance probative value v prejudice

Question 38

What is the time limitation to impeach credibility for a criminal conviction?

Answer 38

As to both categories, the conviction, or release from prison, whichever is later, generally must be within 10 years of trial. If more than 10 years have elapsed, the conviction may not be used for impeachment UNLESS: Probative value is substantial - Lets say it was a 1st degree felony perjury 12 years ago to congress, that is serious, judge than has discretion

Question 39

What is the method used to prove that a witness has a previous criminal record? 2 ways:

Answer 39

1. Ask the witness to admit prior conviction; or
2. Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction.

Question 40

Inquiry About Bad Acts (without conviction) if they reflect adversely on witness’s character for truthfulness, what is the only permissible procedure to introduce them?

Answer 40

You have to confront the witness on cross examination, ask the witness about the bad act and hope that she admits, no extrinsic evidence (serious limitation); 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 itself, not its consequences, such as job termination, civil judgment, or arrest. *NOTE - Proof with extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than bad character for truthfulness.

Question 41

HYPO, Bad Acts: Witness gives favorable testimony for Defendant. On cross-examination, Plaintiff asks Witness whether she assaulted her mail carrier two years ago (no charges were brought).

Answer 41

Objectionable, Assault is a bad act, but not the type of bad act that results adversely, has to be a bad act that involves deceit or lying (does not have to be a crime, misrepresentation)

Question 42

HYPO, Bad Acts:

a) After Witness testifies for Defendant, Plaintiff asks Witness whether she made false statements in an application for food stamps in July 2001 (no charges were ever brought).
b) Same cross-examination. Witness vehemently denies making false statements in the application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness made the false statements?

Answer 42

a) Allowed in the courts discretion - Lying on a govt. application for falsehood, no criminal conviction, but if the witness admits it it casts doubt
b) No - No extrinsic evidence here, if witness denies, you must take the answer of the witness -Considered collateral, distracting, time consuming, mini-trial, not worth it

Question 43

HYPO, Bad Acts: Prosecution of Michael for embezzlement of the office petty-cash fund. Dwight testifies for Michael. On cross-examination, Dwight is asked whether he was arrested three years ago for passing counterfeit money. Objectionable?

Answer 43

Yes - Cant ask if he was arrested for the bad act, an arrest is nothing more than an accusation, there is nothing in the facts that show there was a conviction

• Jury confusion, we know that arrest does not mean much but a jury may not
• ASK Dwight point blank (the underlying act) - Did you pass counterfeit money on such date, but dont ask about the arrest, an arrest itself is not a bad act

Question 44

HYPO, Bad Acts: Prosecution of Donald. Winston testifies for the prosecution. On cross-examination, Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial on those charges.

Answer 44

Thats allowed - Bias - Look who Winston is testifying for, he has a motive to testify favorably for the govt., bias
-Can use extrinsic evidence for bias (this is the key)

Question 45

What is the concept of “contradiction?”

Answer 45

Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.

Question 46

What is the general rule for contradiction?

Answer 46

EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of contradiction IF the fact at issue is collateral (i.e. ion the fact has no significant relevant to the case or to the witness’s credibility).

Question 47

HYPO on Contradiction: In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Boardwalk and Park Place on March 1, he saw that the traffic light was red for Defendant as Defendant’s car entered the intersection and hit Plaintiff. On cross-examination, Witness is asked (a) “Isn’t it a fact that the tree at that intersection is an oak?” and (b) “Isn’t it a fact that the traffic light was not functioning at all on March 1?” Witness insists that his direct testimony was accurate.

1) During the defense, may Defendant properly prove that the tree at the intersection is an oak tree?
2) During the defense, may Defendant properly call a police officer to testify that the traffic light at the intersection was not functioning at all on March 1?

Answer 47

1) No - That is collateral to the issue

2) Yes - This goes to the facts of the trial (noncollateral ocntradictory fact)

Question 48

What is rehabilitation?

Answer 48

Showing witness’s good character for truthfulness.

Question 49

When is rehabilitation used?

Answer 49

Only when the impeachment clearly states the witness was lying as compared to merely being mistaken for (4,5,6)

(4) Bad Reputation or Opinion about witness’s character for truthfulness
(5) Criminal Convictions
(6) Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness

Question 50

How is rehabilitation used?

Answer 50

Bring out a character witness

Testifies that impeached witness has a good reputaiton, or own opinion

Question 51

When can a witness be rehabilitated for a Prior consistent statement to rebut a charge of recent fabrication.

Answer 51

If the witness’s trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the statement was MADE: The motive to fabricate arose

Question 52

What is the purpose a Prior consistent statement to rebut a charge of recent fabrication.

Answer 52

A prior consistent statement that fits within the rule is admissible to rehabilitate credibility and as substantive evidence that the prior statement was true. It is labeled a hearsay exclusion.

Question 53

Brad v. Jennifer. On July 1, pedestrian Brad was struck by a car driven by Jennifer. Angelina, a stranger to Brad and Jennifer at the time, witnessed the accident and told the police on July 1 that Brad looked sober as he crossed the street. At trial, six months later, Angelina testifies for Brad, “He looked sober as he crossed the street.”

(a) On cross-examination, the only question Angelina is asked is whether she was convicted eight years ago of income tax evasion, to which she answers “Yes.” On re- direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober?
(b) Assume that on the cross-examination of Angelina, she is asked, “Isn’t it a fact that after this accident, you and Brad became close friends and are now living together as lovers?” to which she answers, “Yes.” On re-direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober? If so, for what purpose?

Answer 53

a) No - There is no basis for using prior consistent statement
Conviction directed at general bad character for truthfulness, not recent motive

b) Yes - Insunuation, favorable testimony of Brad because of relationship with Brad, this is a recent motive for Brad, she talked about Brad being sober before the motive to fabricate arose, rehabilitates, suggests that romance has had no effect, and the bonus, comes in as additional substantive evidence