witnesses

Question 1

Witnesses

Answer 1

Competency
Leading questions
Writings in aid of oral testimony
Opinion testimony
Cross examination

Question 2

Witnesses

competency

Answer 2

Testimonial qualifications in order to testify:

1. Personal knowledge - saw w/own eyes or heard w/own ears
2. Oath or affirmation - willingness to tell the truth

Question 3

Witnesses

competency - Dead Man’s Statute

Answer 3

CIVIL ONLY
Interested witness is INCOMPETENT to testify against the estate of a DECEDENT concerning a transaction or communication between interested witness and decedent.

Question 4

Witnesses

leading questions

Answer 4

Form of question suggests the answer
Not allowed on direct but allowed on cross
EXCEPTION on direct:
preliminary introductory witness
youthful or forgetful witness
hostile witness
witness is adverse party or someone under control of opposing party

Question 5

Witnesses

writings in aid of oral testimony

Answer 5

Refreshing recollection

Past recollection recorded

Question 6

Witnesses
writings in aid of oral testimony
refreshing recollection

Answer 6

Rule: Witness may not read from prepared memorandum and must testify on basis of current recollection.
BUT, if witness’s memory fails, he may be shown a memorandum or other tangible item to jog his memory

Question 7

Witnesses
writings in aid of oral testimony
refreshing recollection
safeguards against abuse

Answer 7

As a safeguard against abuse of refreshing recollection, adversary has a right to:

1. inspect the memory refresher
2. use it on cross
3. introduce it into evidence (must be authenticated)

Question 8

Witnesses
writings in aid of oral testimony
past recollection recorded (hearsay exception)

Answer 8

Allows writing to be read to jury
Foundation for reading into evidence:
a. showing writing to witness fails to jog memory
b. witness had personal knowledge at former time
c. writing was either made or adopted by witness
d. making or adoption occurred while the event was still fresh in the witness’s memory
e. witness can vouch for accuracy of writing when made or adopted

Question 9

Witnesses

Opinion testimony

Answer 9

Lay witness
Expert witness
Ultimate issues

Question 10

Witnesses
Opinion testimony
lay witness

Answer 10

Lay opinion ADMISSIBLE if i) personal knowledge (rationally based on witness’s own perception) AND ii) helpful
Examples: drunk/sober, vehicle speed, sane/insane, emotions, odors, handwriting, character

Question 11

Witnesses
Opinion testimony
expert witness

Answer 11

qualifications
proper subject matter
basis of opinion
relevance and reliability
learned treatise in aid of expert testimony

Question 12

Witnesses
Opinion testimony
expert witness
qualifications

Answer 12

education and/or experience

Question 13

Witnesses
Opinion testimony
expert witness
proper subject matter

Answer 13

Scientific, technical or other specialized knowledge that will be HELPFUL to jury in deciding fact.
An opinion is not helpful if the proposition is obvious.

Question 14

Witnesses
Opinion testimony
expert witness
basis of opinion

Answer 14

Expert must have opinion based on reasonable degree of probability or reasonable certainty
3 permissible data sources
1. personal knowledge (treating physician)
2. other evidence in trial record (testimony by other witnesses, exhibits) made known to expert in HYPOTHETICAL question
3. facts outside record (hearsay) IF outside material is a type reasonably relied upon by experts in this particular field. In general, not detail - just general description

Question 15

Witnesses
Opinion testimony
expert witness
relevance and reliability

Answer 15

To be ADMISSIBLE, expert opinion must be RELEVANT to the issue at hand and sufficiently RELIABLE.
Expert must use reliable methods and apply them reliably to the case facts.
Court will use 4 principal factors to determine reliability of principles and methodology used (TRAP)
T - testing and use
R - rate of error
A - acceptance
P - peer review and publication

Question 16

Witnesses
Opinion testimony
expert witness
learned treatise in aid of expert testimony (hearsay exception)

Answer 16

1. On direct of party’s own expert - relevant portions of treatise may be read into evidence as SUBSTANTIVE EVIDENCE to prove totma IF established as reliable authority
2. On cross of opponent’s expert - read into evidence to impeach or contradict opponent’s expert as SUBSTANTIVE EVIDENCE
3. But learned treatise may NOT be introduced as exhibit

Question 17

Witnesses
Opinion testimony
ultimate issues

Answer 17

Opinion testimony is not objectionable just b/c 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.

Question 18

Witnesses

Cross examination

Answer 18

Party has a right to cross examine any opposing witnesses who testify at trial. Significant impairment of this right will result, at minimum, in striking witness’s testimony.
Proper subject matter - matters w/in scope of direct and matters that test the witness’s credibility