Witnesses Flashcards
When may a court excuse a witness?
If the probative value of their testimony is outweighed by unfair prejudice
What is a Dead Man’s statute?
A state statute that excludes evidence of a conversation between a dead man and a witness
What is the scope of evidence that a lay versus an expert witness can provide?
Layman: Must have first hand knowledge
Expert: Personal knowledge is not required
More Info: Lay v. Expert Witness
Who cannot testify in a case?
- The presiding judge may not testify in the trial
And
- A juror may NOT testify as a witness before the jury of which he is a member
What must a witness do to qualify to testify?
A witness must declare to testify truthfully by oath or affirmation.
How is an interpreter qualified?
The same way as an exper,t and they must take an oath or affirmation
What may a juror testify to?
- Extraneous prejudicial information improperly brought to the juror’s attention
- Whether any outside influence was improperly brought to bear on any juror
Or
- Clerical/secretarial error (mistakes on the verdict form)
What can a juror not testify on?
- Any statements made during deliberations
- Thought processes
or
- Votes taken during the verdict
List examples of when a juror’s testimony will be excluded when challenging a verdict.
- Juror misunderstood the evidence or the instructions
- The jury reached its verdict improperly (drawing straws or quotient verdict)
- The jurors drank alcohol and smoked marijuana during deliberations
- One juror physically bullied another regarding his vote
- 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
More Info: Collateral Matter
What are the three arguments commonly advanced in an impeachment?
- The witness is a liar
- The witness is mistaken
- The witness is biased
What are the limits to cross examining a witness about a collateral matter?
Whatever the question, the party bound by the witness’ answer. Extrinsic evidence on a collateral matter is inadmissible to impeach a witness.
When is extrinsic evidence on a collateral matters admissible?
It is always inadmissible to impeach a witness.
What are the methods of witness impeachment?
Provide evidence of:
- Bias or prejudice
- Sensory defects
- Prior inconsistent statements
- Bad character of witness
What does the credibility issues to the limits of collateral matters not apply to?
- Bias or prejudice impeachment
- Sensory defects
- Character for untruthfulness
What are examples of bias or prejudice evidence?
- Family
- Business relationships
- Confidential informants
- Fee arrangement
When can sensory defects be used for impeachment?
Inability to observe, communicate, or remember is always relevant and never a collateral matter.
What are the four ways to impeach character of a witness?
- Reputation or opinion
- Bad acts
- Felony convictions in general
- Specific convictions of crimes involving dishonesty or false statements
* More Info:* Impeaching Character
How can a witness’s character for untruthfulness be attacked?
- By the use of extrinsic reputation or opinion evidence, either party may call a witness in both civil and criminal cases. The extrinsic witness is able testify as to witnesses reputation for truthfulness in the community.
- Cross-examining the witness about specific acts (fraud, perjury) which reflect on his character for truthfulness
When can a witness’s character for truthfulness be shown by reputation or opinion evidence?
Only when the witness’ character for truthfulness has been attacked.
It cannot bolster a witness’s character in advance of an attack.
What are the limitations on the bad act impeachment of a witnesses?
Can only be brought about by:
- A question on cross-examination
- Testimony about prior unconvicted acts bearing on (un)truthfulness (or dishonesty). The party is stuck with the answer given by the witness.
What can bad actimpeachmentnot be?
Too remote in time or based on rumors
When can impeachment by evidence of a criminal conviction be introduced?
In all cases, for all witnesses
What are the categories admissible impeachment evidence of criminal conviction?
- Felonies punishable by death or imprisonment over 1 year
- Crimes involving dishonesty or false statements
* More Info:* Impeachment Evidence - Criminal Conviction
When will evidence of a felony for a witness other than the accused be excluded?
It is excluded if the probative value is substantially outweighed by unfair prejudice pursuant to the 403 balancing test.
When will evidence of a felony for a witness other than the accused be admitted?
The prosecution shows the probative value outweighs the prejudicial effect
When will evidence of conviction of a crime involving dishonesty or false statements be admitted?
It is a matter of right, so there is no balancing so long as it happened within the last 10 years.
Examples:
Perjury
Forgery
Larceny by trick
Tax evasion
Fraud
False pretenses
≠ Assault, Drug cases, Theft, Prostitution
What is the 10 year rule?
What is its exception?
Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect. If so, notice of introduction must be given to the opponent.
How are the 10 years in the 10 year rule measured?
Measured from whichever is more recent:
- The date of conviction
Or
- The date of release from confinement
What is the admissibility of a juvenile conviction to impeach?
- Inadmissible against the accused
- Admissible against all other witnesses
What is the admissibility of using arrest records, indictments, and other charges to impeach a witness?
They are all 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 at sentencing.
How can a defendant prevent prior convictions from coming into evidence?
Not testifying
Can party ask a character witness if his opinion would change if he knew defendant was guilty?
No
Can evidence of a witness’s religious beliefs be used for impeachment?
It 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?
- Generally not on direct
- When the examiner and the witness are on the same side
In what circumstances may leading questions be appropriate on direct examination?
- Hostile witness
- Adverse witness (when not on the same side)
- Child witness
- Introducing preliminary background information
- To refresh recollection
What is the scope of cross-examination limited to?
What are the elements necessary to refresh/jog a witness’s memory?
- The witness cannot remember an event
- On direct
- Can use anything: writing, photograph, further questioning, or other form of evidence to refresh
- If they are refreshed, the witness can keep testifying
The refreshing evidence is not introduced into evidence
What can the adverse party do when an opponent refreshes/jogs a witness’ memory?
What about when privileged material is used to refresh?
The adverse party:
- May inspect the refreshing material
- Cross-examine with it
- Show a writing to the jury for comparison with witness’ testimony
An
- Introduce relevant portions into evidence only for impeachment
If privileged, then waiver of the privilege has occurred when it is used to refresh.
What are the procedural steps for refreshing a witness?
- Give a copy to the judge and opposing counsel
- Mark it as an exhibit for identification only
- Ask witness to silently read the document
- Take back the writing
- Ask witness to testify independently of the writing
What is the difference between a present memory refresh and past recollection recorded?
Present Memory Refresh: Intrinsic evidence used to testify
Past Recollection Recorded: Extrinsic evidence admitted into evidence
More Info: PMR v. PRR
What is a prior inconsistent statement used to impeach a witness?
A statement that is:
- Not sworn
- Oral or written
- Contents need not be shown to witness (on request must be shown to opposing side)
- Used with the intention to impeach
* More Info:* Prior Inconsistent Statement
When is extrinsic evidence of a prior inconsistent statement by a witness admissible?
- The witness is afforded an opportunity to explain or deny at some point
- Opposing counsel is afforded an opportunity to interrogate the sponsoring witness (the witness that could testify to the prior inconsistent statement)
What is the consequence if a witness denies making a prior inconsistent statement?
If a witness admits to making a prior inconsistent statement?
If the witness denies making the statement, then extrinsic evidence is generally admissible to impeach.
If the witness admits to making the statement, then the witness has the right to explain his answer.
If a prior statement was not given under oath, it can only be used for what purpose?
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
When does sequestration of witnesses occur?
At the request of a party, the court shall remove witnesses from the courtroom so they do not hear other’s testimony.
The following cannot be excluded:
- Party
- Essential witnesses
- Witnesses exempted by statute
* More Info:* Sequestration of Witnesses
If a court fails to sequester a witness, what is the remedy?
Moving for a mistrial
