Witnesses Flashcards
Competence - General
- Every witness is presumed competent unless proven otherwise. (FRE 601)
- Questions about mental competence go to the weight not admissibility of a witness’s testimony.
- Note 9: In diversity cases, witness competence is determined by state law.
- Non –expert (lay) witnesses must have____________________________________________ They cannot speculate or hypothesize. (Rule 602)
- Note 10: Expert witnesses can speculate or hypothesize.
- Example 52: Eyewitness at Ford’s Theater must have some basis for his testimony, e.g., “I saw Booth,” or “I heard Booth.”
- Witnesses must take an _____________________ or affirmation. (FRE 603)
- To impress a duty of conscience on the witness.
- Interpreters must also take an oath. (Rule 604)
- Judges as Witnesses: (FRE 605)
- May not testify in trial over which she presides
- No objection required (plain error)
- Jurors as Witnesses: (FRE 606)
- At trial may not testify as witness at trial in front of their co-jurors
- Example 53: Juror may need to testify if there is bribery of a juror or a juror has failed to follow the court’s instructions. The juror may testify outside the presence of the other jurors.
- Opposing counsel must be given the opportunity to object outside the presence of the jury.
- After the trial may not testify about:
- Statements made _______________________________________________
- Effect of anything on a particular juror’s vote and
- Any juror’s ______________________processes
- After the trial juror may testify about
- ________________________________ prejudicial information was brought in (e.g., newspapers)
- Outside improper influences (e.g., threats)
- ________________________________ in entering the verdict on the form
- Does not extend to mistakes about the consequences of the verdict
- Child as Witness
- __________________decides competency (no bright-line rule) o
- Factors:
- Intelligence
- Ability to distinguish between truth and falsehood.
- Understanding importance of telling the truth
- At trial may not testify as witness at trial in front of their co-jurors
Competence - Non-Expert Lay Witness
- Non –expert (lay) witnesses must have personal knowledge to testify; They cannot speculate or hypothesize. (Rule 602)
- Note 10: Expert witnesses can speculate or hypothesize.
- Example 52: Eyewitness at Ford’s Theater must have some basis for his testimony, e.g., “I saw Booth,” or “I heard Booth.”
Competence - Oath or Affirmation
- Witnesses must take an oath or affirmation. (FRE 603)
- To impress a duty of conscience on the witness.
- Interpreters must also take an oath. (Rule 604)
Competence - Judges as Witness
- Judges as Witnesses: (FRE 605)
- May not testify in trial over which she presides
- No objection required (plain error)
Competence - Juror as Witness
- Jurors as Witnesses: (FRE 606)
- At trial may not testify as witness at trial in front of their co-jurors
- Example 53: Juror may need to testify if there is bribery of a juror or a juror has failed to follow the court’s instructions. The juror may testify outside the presence of the other jurors.
- Opposing counsel must be given the opportunity to object outside the presence of the jury.
- After the trial may not testify about:
- Statements made dury deliberation
- Effect of anything on a particular juror’s vote and
- Any juror’s mental processes
- After the trial juror may testify about
- extraneous prejudicial information was brought in (e.g., newspapers)
- Outside improper influences (e.g., threats)
- mistake in entering the verdict on the form
- Does not extend to mistakes about the consequences of the verdict
Competence - Children
- Child as Witness
- court decides competency (no bright-line rule)
- Factors:
- Intelligence
- Ability to distinguish between truth and falsehood.
- Understanding importance of telling the truth
Competence - Dead Man Statute
- Exam Tip 2: MBE has tested on this in the past.
- Does not apply in a criminal case
- Common Law: A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate.
- Example 54: Mary Todd Lincoln sued John Wilkes Booth in civil court for wrongful death of Abraham Lincoln. Booth cannot quote Abraham Lincoln in this civil suit brought on behalf of Lincoln’s estate if the alleged communication Booth had with Lincoln while he was alive is ______________________ to Abraham Lincoln’s estate.
- Federal Law: NO Dead Man’s Statute restriction (but Dead Man’s Statute restriction can apply if state law applies to a federal case)
- Exam Tip 3: On the MBE, the Dead Man’s Statute will only apply if the question explicitly says that state law applies and the state has a Dead Man’s Statute in effect.
Impeachment - General
- Witness may be impeached by calling witness’s credibility into question
- Bases for challenging credibility
- Bias
- Character for untruthfulness
- Inability to perceive what they are testifying about
- Prior inconsistent statements
- Another contradictory witness or evidence
Note 11: Any party can impeach a witness, even the party calling the witness.
Impeachment - Character for Truthfulness
a.How can you impeach a witness’s character for truthfulness?
- Reputation
- Opinion
- Specific Instances
b.Truthful character evidence: Credibility may not be discussed until it has first been attacked.
- Example 55: Prosecution cannot put George Atzerodt on the stand and ask on direct, “Are you honest?” “Do you tell the truth?” This is bolstering.
- Note 12: Attacking a witness’ bias is NOT attacking his truthfulness
- Example 56: Mary Todd Lincoln is on the stand and on cross-examination she is asked, “You loved Abraham Lincoln?” “You want revenge?” This is not an attack on her truthfulness. These are questions about her bias, not an attack on truthfulness.
c. Specific instances of conduct
- Extrinsic evidence of specific instances of untruthful conduct is generally not admissible to attack a witness’s truthfulness. However, on cross examination, specific instances can be asked about if it’s regarding truthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified.
- Example 57: George Atzerodt lied on his job application. I am not allowed to bring in the job application to show that he lied. However, on cross, I can ask him about the job application. If he denies lying, I cannot bring in the extrinsic evidence.
- Limits on cross-examination regarding specific instances of conduct:
- Must have a good-faith belief in prior misconduct
- May not cross-examine a witness about an arrest
- May cross-examine about the underlying conduct that led to the arrest
- Example 58: George Atzerodt was arrested for writing bad checks. I cannot ask, “You were arrested for check kiting, correct?” However, I can ask, “You cashed checks in someone else’s name, correct?”
- Extrinsic evidence generally cannot be used to prove that specific instance of untruthfulness.
- Discussion of consequences is also prohibited
- Example 59: The bad check may be asked about but may not be introduced to show George Atzerodt cashed checks in someone else’s name. The check is extrinsic evidence of the underlying conduct. o
- Extrinsic evidence of specific conduct can be used to impeach on other grounds, e.g. bias.
- Example 60: I cannot bring in the forged check unless, for example, it’s brought in to show bias against Booth. George Atzerodt forged John Wilkes Booth’s name on a bad check and was caught. The bad check may be introduced to show George Atzerodt’s bias.
- When the foundation for the extrinsic evidence (e.g., the check) is established through the witness being impeached, it is possible that the extrinsic evidence might be admissible to impeach the witness’s character for truthfulness.
- May cross-examine about the underlying conduct that led to the arrest
- Privilege against self-incrimination: By testifying on another matter, a witness does not waive the privilege against self-incrimination for testimony relating only to the witness’ character (FRE 608(b)).
Impeachment - Criminal Convictions
General Rule: conviction of a prior crime is a possible basis for impeaching a witness’s character for truthfulness. The rule is subject to limitations.
a. Crimes involving dishonesty or false statement - Any prior conviction is admissible, subject to a 10-year restriction, whether a misdemeanor or a felony and regardless of the punishment
- Crimes of dishonesty: Fraud, perjury, embezzlement, and false pretenses
- NOT crimes of dishonesty: murder, rape, and assault
Example 61: George Atzerodt testifies for the prosecution. Five years earlier, he was convicted of check kiting. Is this admissible? Yes. Whether misdemeanor or felony, it’s within the 10 year restriction and it’s a crime of dishonesty.
b. Crimes that do not involve dishonesty
- Subject to 10-year limitation
- Rule: Admissible, but only if the crime is punishable by death or imprisonment for more than one year, i.e., a felony
Example 62: Atzerodt testifies that he was convicted five years ago for assault. It would be inadmissible if the imprisonment was for less than one year.
1) If witness is the criminal defendant and crime is not crime of dishonesty
Example 63: John Wilkes Booth testifies. He was convicted five years ago for assault. Even if he was imprisoned for more than one year, the prosecution must pass the FRE 403 test; must prove that the probative value of the evidence outweighs the risk of unfair prejudice
- Admissible if its probative value substantially outweighs the potential prejudicial effect to that defendant. (FRE 403)
2) Witnesses other than the criminal defendant - General Rule: Evidence must be admitted. To exclude, burden is on opposing counsel to overcome the FRE 403 challenge
c. Convictions more than 10 years old
- If more than 10 years has elapsed since conviction or release (whichever is later):
- Conviction is admissible only if the party offering the evidence shows that probative value of the conviction substantially outweighs the risk of unfair prejudice; and
- Proponent gives reasonable notice of the intent to use the evidence to opposing counsel
d. Conviction evidence [FRE 609(c)] NOT admissible if:
- Pardoned
- Annulled
- Later found innocent
- Rehabilitated
e. Juvenile Convictions
Not admissible to impeach defenant
- If witness is not defendant – admissible if offered to impeach truthfulness and if:
- Offered in a criminal case
- Would be admissible if an adult conviction would be admissible; and
- Admitting evidence is necessary for fair determination of guilt or innocence
Note 13: A criminal defendant can use a witness’s juvenile conviction to impeach by showing bias.
f.Manner of Proof - Can prove prior convictions by:
- Witness’s admission on cross or direct or
- Extrinsic evidence (the record of the conviction)
g. Pendency of an appeal has NO affect on impeachment. Evidence of pending appeal is also admissible.
Impeachment - Prior Inconsistent Statement
- May be used to impeach
- Prior inconsistent statement does not need to be a sworn statement
Example 64: George Atzerodt testifies that he never said that he wanted to kill Abraham Lincoln. Any prior statements that he made to the contrary would be admissible to impeach him.
- An attorney does not need to show the prior statement to the witness, but must show it to opposing counsel if requested. (FRE 613)
- Extrinsic evidence may only be introduced if the witness is given the opportunity to explain or deny the prior inconsistent statement.
- This opportunity to explain or deny does not need to take place before the statement is admitted.
Example 65: George Atzerodt testified that he never said he wanted to kill Abraham Lincoln. The defense presents evidence of Atzerodt’s prior inconsistent statement through another witness. The prosecution cannot object on the grounds that Atzerodt has not been given the opportunity to explain or deny the statement because Atzerodt can be recalled and given that opportunity later.
- Exceptions:
* No opportunity need be given to explain or deny if
* Impeaching a hearsay declarant
* Admission of a party opponent (FRE 801(b)(2))- Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral (i.e., irrelevant) matter.
- Exceptions:
Impeachment - Bias
- Always Relevant
- Bases
- Witness has a relationship to the party or victim (e.g., Mary Todd Lincoln)
- Witness has an interest in the outcome of a case
- Witness has an interest in testifying
Example 66: George Atzerodt cut a deal with the prosecution in exchange for his testimony. o Foundation must be laid before extrinsic evidence may be introduced.
Exam Tip 4: MBE questions normally test bias in the context of a witness who is employed by a party or a witness who has cut a deal with the prosecution.
Impeachment - Sensory Competence
May be impeached by showing witness has a deficiency in ability to perceive, recall, or relate information
Example 67: An audience member who did not have his glasses on when he saw a man jump from the balcony onto the stage – can be impeached for lack of sensory competence.
Impeachment - Hearsay Declarant
Example 68: George Atzerodt is on the stand. He quotes Mary Surratt as saying, “John Wilkes Booth ran out of here.” Mary may be attacked by any evidence that might have been admitted if she had in fact testified. Mary Surratt had previously written a note to Booth saying, “I’ve never seen you running out of Ford’s Theater.” That note may be admitted against her hearsay statement for impeachment purposes.
- May be impeached by any evidence that would have been admissible had the declarant testified
- Similar impeachment treatment is given to a non-hearsay statements by a co-conspirator, agent, or authorized spokesperson.
Impeachment - Rehabilitation
- Explanation on redirect
- By reputation or opinion evidence with regard to character for truthfulness (if the witness’s character was attacked)
- By a prior consistent statement offered to rebut a charge that the witness lied
