Witnesses

Question 1

Competency of witness, in general

Answer 1

a. Refers to qualifications witness must have in order to take stand. Requirements:
1. Personal knowledge—must see with own eyes or hear with own ears.
2. Must give oath or affirmation. Must demonstrate willingness to tell the truth. Don’t have to swear to a god, can just be solemn promise

Question 2

Disqualifications for reasons of incapacity to testify

Answer 2

Can testify even if you dont believe in god, have been convicted of a crime, and have an interest in the outcome of the suti.

Up to judicial discretion:
infancy- child’s capacity
insanity- crazy person’s capacity
Neither judge nor juror can testify.

Question 3

Dead mans statute

Answer 3

In general (multistate rules) –> Witness is not ordinarily incompetent merely because she has an interest/ stakein the outcome of the litigation

b. BUT some states have a “Dead man’s act”—1/2 the states. The typical statute provides.
i. In a CIVIL action, never criminal
ii. Interested witness (ONLY protects against those who claim directly under the decedent. )
iii. Is incompetent to testify
iv. Against the estate of a decedent
v. Concerning a transaction or communication between the interested witness and the decedent

vi. Justification: Fear of perjury. If 2 people were in a convo, the fear is the survivor will lie through his teeth. To get adversarial balance, we seal lips of survivor to have balanced evidence.

vii. No such statute in federal rules
1. For ex: Shania sues elvis for breach of oral k, Elvis denies the k. Elvis dies. Shania wants to testify and also her friend Faith wants to testify on Shania’s behalf that Shania isn’t lying
a. Under FRE—BOTH Shania and Faith may testify about what elvis said.
b. BUT if the Bar explicitly asks what would happen in a state with a dead man’s statute—apply the rule
i. Faith (friend) can testify, but Shania is incompetent to testify because she is interested witness.
ii. Faith may be biased because she’s friends with Shania, but she’s not an interested witness.

Question 4

Leading questions

Answer 4

Form of question suggests the answer (e.g. isn’t it a fact that you rant the red light? Or unevenly balanced alternatives, like “were you driving fast and furious in some other way? Lawyer putting words in mouth of witness)

a. Generally leading qs aren’t allowed on DIRECT
b. Generally, they’re allowed on CX.
c. But allowed on Direct exam as follows
i. Preliminary introductory matters, like “weren’t you on corner fo hickory or elm on aug 21?”
ii. Youthful or forgetful—even if on direct can ask leading
iii. Hostile witness- your own witness that you called, but has become hostile.
iv. Direct but it’s the opposing party or someone under the control of the adverse party – allowed to use leading because presumption they’re hostile
1. Like med mal practice, but patient calls her own doctor. Presumed hostile, can use leading questions on direct.

Question 5

Improper questions and answers

Answer 5

questions that are misleading (i.e. cannot be answered without making unintended admission), compound (require a single answer to more than one q), argumentative, conlusionary, cumulative, harassing or embarrassing, call for narrative answer or speculation, or assume facts not in evidence are improper and not permitted.
a. Answers without foundation (without personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.

Question 6

Writings in aid of oral testimony

Answer 6

2 situations where it’s ok

refreshing recollection or past recollection recorded

Question 7

Refreshing recollection

Answer 7

i. Basically: if witness is on the stand, want them to testify on basis of actual memory. Don’t want them to read from prepared memo, because that’s basically hearsay. Can try to jog memory by showing them stuff.

1. Can show literally any writing to a witness in an effort to refresh recollection.
2. No need for authentication, not hearsay, best evidence rule doesn’t apply
   a. Because not offering writing into evidence. Only for limited purpose, in hopes that witness will remember after looking.
3. After memory restored, MUST set aside. Witness must now testify based on memory

iii. Safeguards against abuse, adversary has right to
1. Inspect the memory-refresher
2. Adversary can use it on CX to trip up witness
3. Adversary can introduce it into evidence if it may cast doubt on witness

Question 8

Past recollection recorded

Answer 8

Hearsay exception
i. Does not require unavailability of declarant, rather, it means that the declarant is on the stand, but cannot remember the event, even after consulting a writing shown to her on the stand. Writing itself may be introduced into evidence if foundation is laid that:

1) at one time witness had personal knowledge 2) writing was made by or under direction of witness 3) writing was timely– events were fresh in witness’ mind 4) witness has insufficient recollection to testify in the present

ii. The writing itself is not admissible into evidence by the PROPONENT, it can only be read to the jury on the stand
1. because it’s hearsay
3. It’s just a SUBSTITUTE for witness testimony

iii. BUT the OPPONENT can now have the writing introduced into evidence
1. For ex if opponent thinks they may get impeachment value out of it.

Question 9

Opinion testimony- lay witness

Answer 9

i. Admissible 1) based on first hand knowldge and 2) helpful to jury (judicial discretion)

ii. Examples of things allowed
a. Someone looked drunk or sober
b. Whether someone was speeding/ how fast someone was going
c. Whether someone was sane/ insane
d. Emotions of another person
e. Odors- gas or pot
i. Must have past personal experience
f. Handwriting or voice
i. Must have personal experience
g. Character (when permitted)

Question 10

Opinion testimony- expert witness

Answer 10

Qualifications
1) Either education or experience 2) proper subject matter (kind of thing jury needs help on) 3) basis of opinion must be based on reasonable degree of probability (must have actually looked at some evidence) 4) reliable methodology (not a quack)

iii. Basis of opinion—expert must have opinion based on reasonable degree of probability or reasonable certainty. 3 potential sources
1) personal knowledge
2) evidence in trial record or witnessing the trial
3) Facts outside the record (hearsay) if this material is of the type that is reasonably relied upon by experts in this field in forming their opinions.
b. Unless judge allows it in her discretion because she thinks it will help jury evaluate expert credibility, with jury instructions to only consider for narrow purpose

iv. Reliable methodology
1. To be admissible, must be sufficiently reliable. Up to the court Factors: –“TRAP” (Daubert factors)
a. T: Testing of the principles or methods.
b. R: Rate of error
c. A: acceptance level by other experts
d. P: Peer review and publication. Peers have critiqued.

2. Interpreter must meet qualifications of an expert witness—i.e. by reason of knowledge, skill, experience, training or education she is capable of giving true translation. Also must take an oath that she will make true translation.

v. Learned Treatise in aid of expert testimony (Hearsay exception)
1. On direct examination of party’s own expert:
a. Party can read relevant poritons of relevant treatise/ periodical for SUBSTANTIVE evidence to prove truth of matter if established as reliable authority
b. For ex. hip bone is connected to thigh bone from Gray’s Anatomy
c. Must use treatise in conjunction of expert

2. Can use a learned treatise to CX an opponent’s expert (for ex. your expert is a quack bc he doesn’t know Gray’s Anatomy)
   b. Can also use for substantive evidence
   b. BUT cannot be introduced as exhibit—otherwise jury may give too much weight

Question 11

Ultimate issues in opinion testimony

Answer 11

i. Opinion testimony (lay or expert) isn’t objectionable just because it is about an “ultimate issue” in the case (e.g whether or not someone was drunk in a DWI case)
ii. BUT all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful
iii. For ex. witness testimony that ∆ was angry, drove at 80mph, and looked drunk.
1. BUT witness cannot say “looked like ∆ was reckless”
i. Not because testifying to ultimate issue, but because W opinion is not helpful. If jury hears legal jargon “recklessness” has no real life meaning. Not helpful to them.

iv. CRIMINAL cases:
1. Ultimate issue is still proper objectionif expert seeks to give direct opinon that ∆ had the relevant mental state.
2. Following is not allowed: “∆’s insanity prevented him from understandin that he was shooting at the victim in this case.” Expert can only testify in general terms about the effects of a ∆’s mental conditions, like saying for ex. “∆ is schizo and cannot distinguish fact from fantasy.”
3. We want jury to decide insanity

Question 12

Cross-examination

Answer 12

a. Party has a RIGHT to CX any oopposing witness who testifies at the trial. Significant impairment of this right wil result, at minimum, in striking of witness’ testimony.
b. Proper subject matter
i. Matters within scope of direct.
ii. Matters that test the witness’ credibility

Question 13

Credibility and impeachment, in general

Answer 13

a. Bolstering own witness. Can’t just introduce prior consistent statment unless in defense of attack.
i. Rule: Not allowed until after witness credibility has been attacked. Otherwise it’s a waste of time

3. Exception: prior witness ID: W testifies ∆ and also says I picked ∆ out of lineup a few weeks ago.
   a. Exclusion from hearsy.Comes in for its truth.

b. Impeachment of own witness – allowed
i. For ex your own witness stabs you in back and you want to neutralize.

Question 14

Impeachment methods– overview of methods

Answer 14

i. Prior inconsistent satements
ii. Bias
iii. Sensory deficiency
iv. Bad rep for truthfulness
v. Criminal convictions
vi. Bad acts without conviction that reflect badly on witness character for truthfulness
vii. Contradicittion

Question 15

Impeachment methods– procedure overview

Answer 15

i. Ask the witness about the impeaching fact with aim of getting confession (confronting witness)
ii. Prove the impeaching fact w extrinsic evidence (docs or testimony from other witnesses).

Question 16

Impeachment methods– can the impeaching fact be proven with extrinsic evidence

Answer 16

c. Impeaching fact may be proven with extrinsic evidence for all methods except
i. bad acts and
ii. Contradiction of collateral matter
d. For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the Extrinsic evidence is introduced
i. No except for bias

Question 17

impeachment methods– Prior inconsistent statements

Answer 17

i. Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent w trial test

If witness is NOT the opposing party: prior inconsistent statement can be used ONLY to impeach not for substance

1. Exception: prior inconsistent statement of witness can be used BOTH to impeach and as substantive evidence if the witness is currently subject to CX and the prior inconsistent statement was made
   a. Orally under oath and
   b. Part of formal hearing
2. Confrontation timing is flexible. Not required to immediately confront witness. But after by proof of extrinsic evidence, witness must have opportunity AT SOME POINT to return to stand to explain or deny the inconsistent statement
   - ex. witness can explain that they lied before because threatened by Δ, but now in witness protection

If witness IS the opposing party- prior inconsistent statement can be used as substantive evidence (hearsay exception of party admission)
No need to give the opposing party a chance to confront the witness.

Question 18

Impeachment methods– bias, interest or motive to misrepresent

Answer 18

i. Bias may be based on any fact that would give a witness a reason to testify favorably or negatively about a party case.
1. Ex: witness is a party, friend, relative, EE of party
2. Expert witness is paid by party
3. Person with a grudge against a party
ii. Procedure:
1. MUST confront witness with alleged bias while on the stand before you can do anything else
2. CAN prove bias with extrinsic evidence.

Question 19

Impeachment methods– sensory deficiencies

Answer 19

i. NAything that mya affect witness perception or memory. Bad eyesight, hearing, retardation, consumption of drugs or booze.
ii. Confrontation not required. (can always rebut with prior consistent statement)
iii. Extrinsic evidence allowed

Question 20

Bad reputation or opinion about witness character for truthfulness (direct attack)

Answer 20

i. Any witness can be impeached by this method
ii. Confrontation not required –do not have to as witness if she has bad character
iii. Extrinsic evidence—yes only way. Bring out a character witness saying target witness has bad reputation or has low opinion.
iv. BUT!! Character witness can only speak of opinion, not evidence of specific acts.

Question 21

Criminal convictions to impeach witness character for truthfulness

Answer 21

i. Indirect attack to bad character for truthfulness.
ii. Allowed in civil and criminal.
iii. Must be asked in good faith
iii. Relevance: to show witness is more likely to lie under oath.
1. NOT SUBSTANTIVE GUILT
2. This is for showing that witness is not credible.

Types of crimes used to impeach:

1. Conviction of any crime as to which prosecution was required to prove false statement as an element of the crime –> Automatic admissibility. No discretion to exclude it.
   c. Must involve uttering of falsehood.
   Time limit 10 years, unless court finds probative value is substantial. For ex. felony for lying to congress 12 years ago.
2. Felony not requiring utterance of false statement–> court discretion
   a. Factors of probativeness:
   i. Seriousness of crime,
   ii. Relation to deception and stealth
   b. Factors of prejudice
   i. Similarity to case being tried (more similar, more likely jury will see it as past bad act)
   ii. Inflamattory nature of past crime
3. Non felonies–> not allowed.
4. Method of proof
   a. Ask witess to admit prior conviction
   OR
   b. Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of this record

Question 22

Impeachment- inquiry about bad acts without convictino if they reflect adversely on witness character for truthfulness (involves deceipt/ lying)

Answer 22

On CX– can inquire about previous bad acts that reflect on character for truthfulness that did not result in conviction. e.g. lying on resume, lying on application for food stamps.

Extrinsic evidence not allowed, must take the answer. Don’t want a trial within a trial where a party tries to prove the witness’ propensity to lie by bringing up past acts.
Remember, arrest ≠ conviction. Can’t prove an arrest through extrinsic evidence either.

ii. CX must have good faith basis for inquiry, and permission to make the inquiry is subject to court discretion. And inquiry is limited only to act of untruthfulness itself, not its consequences.

iv. Proof with extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than bad character for truthfulness like bias.
1. Sometimes committing bad act may give rise to bias.
vii. For ex, if the PROSECUTION’S witness whether someone is awaiting trial on ANY kind of crime
2. This is a source of bias—
a. Gives witness motive to testify in favor of the government

Question 23

Impeachment- contradiction

Answer 23

Cross-examiner can confront witness about a fact she stated during direct to contradict that fact. That is, that witness lied or was mistaken.

CXer can introduce extrinsic evidence to prove that fact IF it is not collateralii. If witness admits the mistake / lie she has been impeached by contradiction.

Question 24

Rehabilitation- witness character for truthfulness

Answer 24

i. When: only when impeachment suggested your witness was LYING, not just being mistaken.
1. i.e. impeachment methods of bad reputation for truthfulness, convictions, or bad acts of falsehood.
ii. How: bring out a character witness. Reputation or opinion.

Question 25

Rehabilitation- prior consistent statement to rebut

Answer 25

i. Prior consistent statements usually not allowed on direct.

ii. ARE ALLOWED to rebut a charge of recent fabrication (e.g. witness was influenced or has bias),
, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the statement was MADE prior to when the reason for the fabrication arose:
1. Ex. police officer who testifies that she singled out the ∆ because of a scar on his face is impeached with a showing that the officer omitted to mention scar in handwritten report.
2. To rebut, can mention that police officer mentioned scar in formal report

iv. To rebut a contention of sensory deficiency
1. Ex: witness impeached with a contention of faulty memory based on the fact that she underwent treatment for mental disorder.
2. Rebuttal; show that she gave same account of the accident to the police shortly after the accident happened.

v. Purpose: prior inconsistent statement that fits within rebuttal rules is admissible to rehab credibility AND for substantive evidence. It’s hearsay exclusion.

Question 26

Polygraph test

Answer 26

probativeness is substantially outweighed by tendency to mislead/ confuse the jury. Juries give it too much weight and it has high rate of error.

Question 27

Methods of impeachment- means of proof and foundations needed summary chart

Answer 27

a. Prior inconsistent statements
i. Means of proof- cross-examination and Extrinsic evidence (if matter is not collateral)
ii. Foundation: witness must have chance to explain or deny
1. Exception for hearsay declarant and party-opponent

b. Bias or interest
i. Means of proof: cross-examination or extrinsic evidence
ii. Foundation: MUST ask on cross-examination about bias or interest before introducing extrinsic evidence
1. If admitted on cross-examination, admitting extrinsic evidence is in court discretion

c. Conviction of crime involving felony or dishonesty
i. Means of proof: cross-examination or record of judgment
ii. No foundation required

d. Specific instances of misconduct (bad acts)
i. cross-examination only (must take the answer)
ii. Foundation: N/a

e. Opinion or reputation for truthfulness
i. Means of proof: Calling other witnesses
ii. Foundation: none required

f. Sensory deficiencies
i. Means of proof: cross-examination or extrinsic evidence
ii. Foundation: none required

g. Contradiction
i. Means of proof: cross-examination or extrinsic evidence if not a collateral matter
ii. Foundation: none requirement.