Witnesses Flashcards
What is the general rule of competency?
Generally, unless otherwise provided in the FRE, every person is competent to be a witness. In a civil case, in diversity, state law governs the law of witness competency.
FRE 601.
There are dead man statutes.
What is personal knowledge?
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
FRE 602.
Expert witness do not need to have personal knowledge of the matter.
FRE 703.
What is oath or affirmation?
Before testifying a witness must give an oath or affirmation to testify truthfully.
FRE 603.
What about interpreters?
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
FRE 604.
What is a judge’s competency as a witness?
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
FRE 605.
What is the juror’s competency as a witness?
A juror may not testify as a witness before the other jurors at the trial.
A juror may not testify about:
- any statement made or incident that occurred during the jury’s deliberations;
- the effect of anything on that juror’s or another juror’s vote; or
- any juror’s mental processes concerning the verdict or indictment.
No affidavit is allowed either.
A juror may, however, testify about whether:
- extraneous prejudicial information was improperly brought to the jury’s attention;
- an outside influence was improperly brought to bear upon any juror; or
- a mistake was made in entering the verdict on the verdict form.
FRE 606.
Who may impeach?
The credibility of a witness may attack the witness’s credibility.
FRE 607.
What is the collateral matter rule?
A collateral matter is evidence solely affecting the credibility of a witness. If the witness lies on cross-examination, counsel does not have the ability to prove the lie with extrinsic evidence and must accept the witness’s answer.
What are the methods of impeachment?
- Bias or prejudice
- Sensory defects
- Prior inconsistent statements (FRE 613)
- Character (FRE 608 and 609)
May a witness’s character be attacked for untruthfulness?
A witness’s credibility may be attacked or supported by:
- testimony about the witness’s reputation for having a character for truthfulness or untruthfulness; or
- testimony in the form of opinion about that character.
Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. However, bias and prejudice evidence does not constitute such an attack.
Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’s credibility. Must be on cross-examination.
Except for a criminal conviction under FRE 609, extrinsic evidence is inadmissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
FRE 608.
May a witness be impeached by a criminal conviction?
Felonies
You may attack a witness’s credibility by way of a criminal conviction:
1. for a felony, the evidence:
a. must be admitted, subject to FRE 403, in civil or criminal case in which the witness is not a D, and b. must be admitted in a criminal case in which the witness is a D, if the probative value of the evidence outweighs its prejudicial effect; and
2. for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required a dishonest act or false statement.
A conviction can be used as long as it is not more than 10 years old. If it is, then there must be a FRE 404 balancing test.
FRE 609.
What limitations are there for using a criminal conviction?
Juvenile adjudications are generally inadmissible to impeach a D-witness. It is discretionary as to all other witnesses.
A conviction under appeal is admissible.
A pardon makes a conviction inadmissible.
Arrests, indictments, and other charges are inadmissible.
What rules govern the mode and order of examination?
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
- make those procedures effective for determining the truth;
- avoid wasting time; and
- protect witnesses from harassment or undue embarrassment.
Cross should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
Leading questions should not be used on the direct except as necessary to develop the witness’s testimony. Ordinarily, leading is allowed on cross and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
FRE 611.
What is refreshing a witness’s memory?
On direct, an examiner may job the witness’s memory.
Any writing, photograph, further questioning, or other form of evidence will suffice. The witness cannot continue to testify while looking at the evidence.
An adverse party may:
- have the writing produced at the hearing;
- inspect it;
- cross-examine the witness about it; and
- introduce in evidence any portion that relates to the witness’s testimony.
FRE 612.
What is prior statement of the witness?
When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. However, the party must, on request, show it or disclose its contents to an adverse party’s attorney.
Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
FRE 613.
