Witnesses 600-615 Flashcards
What must a witness do to testify in court?
- Competency 2. Personal Knowledge 3. Oath or Affirmation
FRE601: Title
Competency
Summarize 601:
Witnesses are presumed to be competent
Credibility may be questioned on CX
*although if state law governs an issue, state competency standards apply
FRE605: Title
Judge’s Competency as a Witness
Summarize 605:
Presiding judges may not testify as a witness at trial and the objection is not one that needs to be raised. It prevents judges, clerks, etc. from sharing their opinions and reporting evidence
FRE606: Title
Juror’s competency as a witness
Summarize 606
Jurors may not testify as witnesses before other jurors at trial
* objection should be made outside of the jury’s presence
Can counsel testify?
While not excluded by the FRE, the code of ethics frowns upon it
FRE602: Title
Need for personal knowledge
FRE603: Title
Oath or Affirmation to testify truthfully
Summarize 602:
A witness needs personal knowledge of the matter, with the exception of expert testimony under 702
Summarize 603
A witness must swear to testify truthfully, but it just needs to convey their promise to be truthful
FRE604: Title
Interpreter
Summarize 604
An interpreter must be (1) qualified and (2) give an oath or affirmation to make a true translation
Summarize 611
Reasonable control, limited cross to direct’s scope and credibility, potentially open (courts discretion); Leading questions prohibited unless cross (hostile witness, adverse party, identify with adverse party)
FRE614: Title
Courts calling and examining a witness
FRE614
A court may call a witness on its own, or at a party’s request, Parties entitled to CX, court may examine on its own, Party may object at that times or next time jury is not present
FRE615: Title?
Excluding witnesses
Summarize 615
When requested, the court must exclude witnesses, or may do so on its own, unless: Party is a natural person, officer/employee designated as party representative, presence is essential, or statutorily authorized
Invoked by parties, or judge
What is an argumentative objection?
Attorney is drawing inferences or making conclusions
Asked and Answered
Self Explanatory
Assumes Facts not in evidence
factual assertion not yet in evidence
Beyond the scope
of cross or redirect
Narative
Long answers, telling a story
Speculation
Asks witness to infer what others are thinking/mindset, beyond witness perceptions
Compound
Illicits multiple facts
Harrassment/Badgering the witness
Same question, different ways; arguing with the witness; insulting the witness
Improper characterization
Attorney alters the testimony when posing the question to the witness
Leading
If direct, or suggests a specific answer
Non-responsive
Dodgy hostile witnesses
Vague
Too broad for witness to answer
612 title
writing used to refresh a witness’s memory
Summarize 612:
An adverse party may use a writing before ro while testifying to refresh memory, it can ve produced, inspected, CX-ed over, introduced (as it relates to witness testimony)
The adverse party may introduce it into evidence even if not otherwise admissible; refreshing party may only introduce if already admissible
607 Title
Who may impeach a witness
Offensive 607 techniques
rebut the evidence, complete the story, clarify the ambiguous, expert testimony
Defensive 607 Techniques
Impairment of perception or recollection, demonstrate inconsistencies, bias, truthfulness
Who may impeach a witness 607
Any party
613 Title?
Witness’s prior statement
Summarize 613
A witness may be impeached by PIS, for CREDIBILITY (not truthfulness) if requested, they must disclose to attorney.
Extrinsic evidence is only permitted if justice requires, or witness given opp. to explain.
If the issue is collateral, extrinsic evidence is prejudice, delay or confusion outweigh probative value
Summarize the 613 extrinsic/non-extrinsic evidence rules
Extrinsic evidence of non-collateral matter, non-extrinsic evidence on collateral or non-collateral matter admissible
Nonadmissible: Extrinsic evidence of a collateral matter
