witnesses Flashcards
what must witnesses have in order to be able to testify?
personal knowledge
(1) perception
2) memory
3) communication
does the dead man statute apply in federal court
NO,
what must happen for dead mans statute to apply
1) diversity or
2) state court
what is the general rule for a witness being able to testify if have an interest in outcome
a witness is not ordinarily incompetent b/c the witness has an interest in the outcome of the litigation
what is the x/c that a witness is not incompetent if has an interest in the outcome of the case (dead mans hand)
in a CIVIL action, an INTERESTED party IS INCOMPETENT to testify in support of her own interest against the estate of decedent concerning communications or transactions b/w interested party and decedent
When are leading questions allowed on direct
1) establish preliminary matters
2) where witness has come challenges (old, bad English)
3) where witness hostile
what is the basic rule that witness cannot read from paper during testimony
general rule: witness cannot read from prepared memorandum, must testify based on current recollection
what if a witness cannot recall what they were testifying for? what can be used?
ANYTHING can be used to jog the witnesses’ memory
does the witness READ from the memorandum when they cannot remember what they were gonna be testifying to?
NO. dont read from script, just refresh memory
who can offer the memorandum into evidence that the witness used to refresh memory?
only opposing counsel may offer it into evidence
what are the steps for past recollection RECORDed
1) showing writing to witness to jog the memory
2) witness had personal knowledge
3) writing was made either by witness or adopted by witness
4) making or adoption occurred when event was fresh in witness’s memory
5) witness can vouch for the accuracy of the writing
what is the general rule for opinion tesimony?
generally not allowed, only stick to facts
when may a lay witness testify?
lay witness opinion is admissible if
1) rationally based on witness’s perception (personal knowledge) AND
2) assists the jury in deciding the facts
what are some proper subjects of lay opinion
1) drunk/sober
2) speed of car
3) sane/insane (if they know them)
4) emotions of another person (mad, sad, angry, happy)
5) handwriting (if had knowledge BEFORE litigation)
requirements for expert witness
1) qualification
(a) education and/OR
(b) training
(c) experience
2) project subject matter
- scientific, technical, or specialized knowledge that will assist the tier of fact
3) basis of opinion
4) reliability
what is the basis of opinion under an expert witness? (3)
expert must have opinion to reasonable degree of probability or certainty with 3 basis
1) personal knowledge
2) other evidence made known to the witness at or before the hearing
3) facts outside the record (including hearsay) if it is a type REASONABLY RELIED upon by experts in the field
what is an example of a learned treatise in examination of expert witness?
kelly blue book
can learned treatise in examination of an expert witness be put into evidence
NO. only read from it,not put it into evidence
what can a learned treatise in examination be sued on cross examination of expert witness?
READ into evidence to impeach and contradict opposing expert
Does the learned treatise in examination read into as substantive evidence
YES
what should cross examination not exceed?
the scope of direct
what can you cross exam on?
1) issues raised on direct or
2) credibility
what are the 3 areas to whether a witness is credible (PMS)
1) perception
2) memory
3) sincerity
what should cross examination not exceed?
the scope of direct
when can an attorney rehabilitate own witness
only allowed AFTER witness’ credibility has been attacked
can an attorney bring in extrinsic evidence on cross examination on collateral matters?
NO.
- the cross examination is bound by answers given as to collateral matters, no extrinsic evidence is allowed to impeach.
when can an attorney rehabilitate own witness
only allowed AFTER witness’ credibility has been attacked
can a party impeach their own witness?
yes
what are the 7 impeachment method?
1) prior inconsistent statements
2) Bias, interest
3) sensory defects (ability to perceive, bad hearing)
4) bad reputation or opinion about witness’ character for truthfulness
5) criminal convictions
6) prior bad acts (not conviction) involving witness’s character for truthfulness
7) contradiction
impeachment by prior inconsistent statement
any witness can be impeached by showing that on some other prior occasion, they made a material statement (oral or written) that is inconsistent with this testimony
general rule for prior inconsistent statement
limited to use only for impeachment, not for the TOMA
x/c when under other at prior proceeding
do you need to show the witness the prior inconsistent statement prior to impeachment/
NO, but fairness requires the witness to get some opportunity to explain
when does the witness not get a chance to explain the prior inconsistent statement for impeachment?
when it is a party opponent
how to show bias for impeachment?
witness is a friend, party, relative, employee, expert hired by opposing party, someone who dislikes party
can extrinsic evidence be allowed for bias under impeachment?
YES
is extrinsic evidence allowed for sensory defects under impeachment?
Yes
Ex: was not wearing glasses
are specific acts allowed for bad reputation or opinion about witness’s character for truthfulness under impeachment?
NO, only reputation or opinion. Can bring extrinsic evidence
when can ANY crime (felony or misdemeanor) be brought under impeachment?
when the conviction involves lying, deceit, or false statement
examples of crimes that involves untruthfulness
fraud, embezzlement, perjury, but not robbery or ordinary theft.
-Automatically comes in
when a crime does not involve truthfulness when can it be brought in for impeachment?
FELONY crimes.
what is the time limit for allowing felony crimes for impeachment?
10 years from conviction OR release from prison, w/e is later
is extrinsic evidence allowed for convictions for prior crimes to impeach?
yes
what is the difference b/w impeachment of crimes and bad acts?
there are no convictions required in bad acts part
when can a person bring up bad acts relating to a witness’s character for truthfulness?
ONLY on cross examination
is extrinsic evidence allowed under bad acts relating to a witness’s character or truthfulness for impeachment
NO
difference b/w present recollection refreshed and past recollection recorded?
- present recollection refreshed: a witness may be shown any writing or other thing that may refresh their memory of an event . Writing need not be authenticated, is not in evidence and may be used solely to refresh their recollection
- past recollection recorded applies: when a party is seeking to introduce writing into evidence. To have this writing read into evidence, a foundation must be laid.
can a party impeach its own witness
YES.
-
when are leading questions allowed on direct
when a witness is hostile or identified with an adverse party
5 ways to impeachment
1) Prior Inconsistent statement: can be admissible as substantive if prior under oath
2) Bias or motive to misrepresent:
- Always admissible
- e/e allowed if denied motive or bias
3) prior convictions:
(a) dishonesty always allowed
(b) felony: 10 year
4) prior bad acts: (truthfulness)
- no convictions
- if denied prior bad act, no e/e
5) Bad reputation/ opinion: for truth
- maybe proven by e/e
