Witnesses Flashcards
A witness must have knowledge of the matter that she testifies about
(i) Lay Witness - A lay witness must have knowledge
(1) That is, it must be something she saw, heard, or observed
(2) Witness’s personal knowledge can be established by his/her own testimony
(ii) An expert witness does not need personal knowledge but can testify based on facts he has been made aware of.
Oath/Affirmation
and
Competency of Witnesses
Oath or Affirmation: A witness must make an oath or affirmation to testify truthfully. A witness likely does not have to swear or affirm if it goes against her religious beliefs. She can promise to tell the turth & recongize that she was subject to penalty for committing perjury.
Competency of Witnesses: In General every person is competent to be a witness unless these rules provide otherwise.
A testifying Juror
(1) General Rule: A juror may not testify as a witness before the jury that he is a member of.
(2) Testifying During an Inquiry into the Validity of a Verdict or Indictment
(a) a juror may not testify about any statement made or incident that occurred during the jury’s deliberation
(b) Exception. A juror may testify about whether
(i) Extraneous prejudicial information was improperly brought to the juror’s attention
(ii) an outside influence was improperly brought to bear on any juror (e.g. a bribe or threat)
(iii) A mistake was made in entering the verdict on the verdict form.
Where state law governs in federal court (diversity case), and a state recongnizes a Dead Man Act, the following rules apply:
MICHIGAN does not recongize DMS
(a) Elements
(1) In a civil action
(2) an interested witness is incompetent to testify in support of her own interest
(3) against the decedent (or his estate)
(4) Concerning communications or personal transactions between the interested witness and the deceased person.
(5) Unless the estate representatives waive the protection of the statute
Aunt’s stock exmaple
Lay Opinions
(a) A lay witness’s opinion is admissible if it is:
(i) rationally based on the witness’s perception
(ii) Helpful to determining a fact; and
(iii) Not based on scientific, technical, or other specialized knowledge
(b) Examples of commonly accepted lay witness testimony: (i) value of one’s own land or service, (ii) if someone is strong or weak, sad/happy, drunk/sober, sane/insane, (iii) odors, tastes, colors, (iv) speed of a vehicle. Legal conclusions NOT admissible.
Expert Witnesses
(A Witness who is qualified as an expert by knowledge, skills, experience, training, or education).
(1) It is helpeful to the trier of fact
(2) It is based on sufficient facts or data (PIN
(a) Personal knowledge of the facts or data;
(b) Facts that are in the record and made known to the expert by a hypothetical question or testimony at trial; or
(c) Facts that are not in the record if they are the kind of facts other experts would reasonably rely on.
MICHIGAN DOES NOT FOLLOW (c)
Necessity of Reliability
The testimony must be the product of reliable principles and methods which the expert has reliably applied to the facts of the case.
THE DAUBERT FACTORS
(1) Tested: Whether the expert’s technique of theory can be or has been tested.
(2) Rate of Error: The known or potential rate of error of the technigue or theory when applied;
(3) Existence and Maintenance of Standards and Controls concerning its operation;
(4) Acceptance: Whether the technique or theory has been generally accepted in the scientific community; and
(5) Technique or Theory subject to Peer Review: Whether the technique or theory has been subject to peer review.
Ultimate Issue Testimony
In General - NOT automatically objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
Exception: In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have the requisite mental state required by the crime or defense.
MICHIGAN allows testimony, even on the ultimate issue in a criminal case.
Exclusion of Witnesses
At a party’s request a court must order a nonparty witness to be excluded so they cannot hear the other’s witness’s testimony. (A court may also do this on its own.) However, a court cannot authorize excluding:
(a) A party,
(b) A person whose presence is essential to presenting the party’s claim or defense, or
(c) Someone authorized to be there by statute.
