Witnesses Flashcards
Competence
- Must have Personal Knowledge if not an expert witness
- must be under oath
Judge as a witness
absolutely barred
Juror as a witness
Never at trial. Can testify after trial re:
- Prejudicial info brought to jury’s attention
- Improper outside influence
- Mistakes on verdict form
Child as a witness
can testify if able to differentiate truth from falsehood (no spec. age)
Dead Man Statutes
• Protects estate from parties with financial interest in estate
Impeachment
Anyone may attack the credibility of a witness
Character for Truthfulness
Can only be admissible after witness’ truthful character was directly attacked.
Opinion/reputation testimony: admissible to attack character for untruthfulness
Specific Instances of Conduct: generally not admissible for truthfulness attack
(ok on X-Exam)
Criminal Conviction Involving Dishonesty
Admissible
Criminal Conviction not Involving Dishonesty
Admissible ONLY IF crime was punishable by death or imprisonment > 1 year
Conviction or release > 10 years ago
admissible if the probative value substantially outweighs the prejudicial effect
Pardons and Juvenile Adjudications
Not admissible
Prior Inconsistent Statements
Admissible only if witness has a chance to explain or deny the statement and the opposing party has a chance to x-examine witness about it.
If admissible, it can be used for impeachment purposes and as substantive evidence.
Bias or Interest evidence
admissible
Sensory Competence
OK to challenge the witness’ ability to perceive, recall, or relate info.
Rehabilitation of Witness after an attempt to impeach
1) can explain/clarify on redirect
2) opinion or reputation evidence of character for truthfulness.
3) prior consistent statement
Present Recollection Refreshed
• Witness can examine an item to refresh memory; testimony has to be based on the refreshed recollection, not the actual item.
Adverse Party can inspect AND enter relevant portions into evidence
Past Recollection Recorded
Memo/Record witness once had knowledge of but now cant remember enough to testify. (they created the record they use to refresh their memory)
o Can be read into evidence if it’s received as an exhibit and offered by adverse party.
Lay Witness - Opinion Testimony
Opinion is admissible if based on perception of witness
Expert Witness - Opinion Testimony
Subject matter must be scientific, technical or some other specialized knowledge.
Needs knowledge, skill, experience, Training, or education
Reasonable degree of certainty
