Witnesses

Question 1

Generally, who is competent to be a witness?

Answer 1

Generally, every person is presumed to be competent to be a witness. Common-law prohibitions on a witness’s ability to testify because of a lack of religious belief or conviction of a crime are inapplicable in proceedings governed by the federal rules.

Question 2

How are questions of mental competency addressed when assessing whether a person is competent to be a witness?

Answer 2

Generally, every person is presumed to be competent to be a witness. Questions of mental competence go to the weight rather than the admissibility of the testimony. However, in cases that turn on state law, such as diversity cases, a witness’s competence is determined by state law.

Question 3

What level of knowledge does a witness need to hold?

Answer 3

Personal knowledge: A non-expert witness must have personal knowledge of a matter in order to testify about the matter. Personal knowledge may be established by a witness’ own testimony as well as through other means.

Question 4

What is the role of an oath or affirmation?

Answer 4

A witness must give an oath or affirmation to testify truthfully. The oath or affirmation must be in a form designed to impress the duty on the witness’s conscience. An interpreter must give an oath or affirmation to make a true translation.

Question 5

can a judge be a witness?

Answer 5

The presiding judge is absolutely barred from testifying as a witness in the trial. A party is not required to object in order to preserve the issue.

Question 6

Can a juror be a witness during a trial?

Answer 6

A juror may not testify as a witness at trial in front of the members of the jury. If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury. A juror may be called to testify outside the presence of other jurors as to matters that occur during the trial, such as bribery or a juror’s failure to follow the court’s instruction (such as by breaking confidentiality)

Question 7

Can a juror testify after the trial?

Answer 7

Generally no; during an inquiry into the validity of the verdict, a juror may not testify about:

1. any statement made or incident that occurred during the course of the jury’s deliberations (such as refusing to apply the court’s instructions)
2. The effect of anything upon that juror, or any other juror’s, vote, OR
3. any juror’s mental process concerning the verdict.

there are exceptions, though…

Question 8

What are the exceptions to the general rule that jurors may not testify during inquiries into the validity of a verdict?

Answer 8

A juror may testify about whether:

1. Extraneous prejudicial info was brought to the jury’s attention (like if a newspaper article was circulated that was not introduced into evidence)
2. An outside influence was improperly brought to bear on the juror (such as a threat on a juror’s spouse), OR
3. A mistake made when entering the verdict into the verdict form. However, this does not extend to mistakes about the consequences of the agreed-upon verdict.

NOTES: The same rules apply with regard to a challenge to the validity of an indictment by a grand jury.

Question 9

When can a child be a witness?

Answer 9

The competence of a child depends on his or her intelligence, her ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth. So a 5 year old has been found competent to testify at a capitol murder trial.

The decision with regard to competency is one for the court.

Question 10

What are dead man’s statutes?

Answer 10

At common law, a party with financial interests in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case as the testimony was adverse to the estate, unless there was a waiver.

Question 11

Do dead man’s statutes apply to crim cases?

Answer 11

nope

Question 12

How do the fed rules treat dead man’s statutes?

Answer 12

The federal rules do not include such a restriction, but most jdxs have adopted such statutes, which may be applicable in federal cases when state law applies.

Question 13

Who is protected by dead man’s statutes?

Answer 13

The rationale of the dead man’s statutes is to protect a decedent’s estate from parties with a financial interest in the estate. Therefor, protected parties generally include an heir, a legatee, a devisee, an executor or an administrator of an estate.

Question 14

Who is disqualified from testifying under a dead man’s statutes?

Answer 14

Any person directly affected financially by the outcome of the case. A predecessor in interest to the party may be disqualified in order to prevent circumvention of the statute by transference of property to a relative or friend.

Question 15

Who qualifies as an interested person under a Dead Man’s statute?

Answer 15

A personal representative of the decedent or a successor in interest may also be protected under a Dead Man’s Statute as an interested person.

Question 16

Can a person protected by a Dead man’s Statute waive their protection?

Answer 16

Yes, an interested person or protected party may waive the protection afforded by a Dead Man’s Statute in several ways, such as:

1. failing to object to the introduction of testimony by a disqualified witness
2. introducing evidence of a conversation or transaction to which the statute applies.

Question 17

In general, how can a witness be impeached?

Answer 17

A witness may be impeached by calling into question her credibility. Typically, a witness’ testimony is challenged based on her character for truthfulness, bias, ability to perceive or testify accurately, or prior statement that contradicts the witness’ testimony at trial. In addition, a witness may be impeached by another witness or by evidence that contradicts the witness’s testimony.

Question 18

Who may impeach a witness?

Answer 18

Any party, included the party that called the witness, may attack the credibility of a witness.

Question 19

How is a witness impeached through reputation and opinion testimony?

Answer 19

A witness’s credibility may be attached by testimony regarding the witness’s character for untruthfulness. Generally, this testimony must be about the witness’s REPUTATION for having a character for untruthfulness or in the for of an OPINION of the witness’s character for untruthfulness.

Question 20

When can the credibility of a witness be bolstered?

Answer 20

Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. Evidence that impeaches a witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack. As with evidence regarding a witness’s character for UNtruthfulness, evidence as to a witness’s truthfulness is generally admissible only in the form of reputation or opinion testimony.

Question 21

When are specific instances of conduct admissible when showing a witness’s character for truthfulness?

Answer 21

Generally, a specific instance of conduct (i.e. lying on a job application) is not admissible to attach or support the witness’s character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness of

1. the witness or
2. another witness whose character the witness being cross-examined has testified.

Question 22

What are the limitations upon introducing specific instances of conduct against a witness?

Answer 22

The judge may refuse to allow such questioning of a witness under the fed rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or fed rule 611 (protection of the witness from harassment or undue embarrassment).

Also, the lawyer who examines the witness must have a good-faith basis for believing that the misconduct occurred before asking the witness about it.

Question 23

When it comes to specific instances of conduct to attack or support a witness’s character for truthfulness, can arrests be introduced?

Answer 23

Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for the purpose of impeaching the witness’s character for truthfulness; however, the witness may be cross-examined about the underlying conduct that lead to the arrest.

Question 24

Can extrinsic evidence be used when using specific instances of conduct to show a witness’s character for truthfulness?

Answer 24

When, on cross, the witness denies a specific instance of conduct, extrinsic evidence is not admissible to prove that instance in order to attack or support the witness’s character for truthfulness. This prohibition also bars references to any consequences that a witness may have suffered because of the conduct (like work discipline). BUT: see the exception for criminal convictions.

Question 25

Can extrinsic evidence be used when using specific instances of conduct to show a witness’s bias (or other grounds?)

Answer 25

Yes, extrinsic evidence of specific conduct can be admissible to impeach the witness on other grounds, such as bias.

Truthfulness no,
bias/other, yes

Question 26

When using extrinsic evidence to show a witness’s character for truthfulness or their bias, what counts as extrinsic evidence?

Answer 26

A document is generally considered to be extrinsic evidence, but when the foundation for the document is established through the witness being impeached, it is possible that the document might be admissible to impeach the witness’s character for truthfulness.

Question 27

Does a witness waive the privilege against self-incrimination for testimony that relates only to their character for truthfulness?

Answer 27

No, but testifying on another matter they do not waive.

Question 28

Can a witness’s character for truthfulness may be impeached with evidence that the witness has been convicted of a crime?

Answer 28

Yes, subject to limitations:

10 year limit, and must either involve dishonesty/false statement OR be punishable by death or imprisonment for more than 1 year, so typically a felony.

Question 29

When can a witness’s character for truthfulness be impeached with evidence that the witness has been convicted by a crime involving dishonesty or false statements?

Answer 29

Subject to the 10-year restriction, ANY witness may be impeached with evidence that he has been convicted of any crime-felony or misdemeanor-involving dishonesty or false statement., regardless of the punishment imposed or the prejudicial effect of the evidence.

Question 30

When can a witness’s character for truthfulness be impeached with evidence of committing a crime that does not involve dishonest or a false statement?

Answer 30

Subject to the 10-year restriction, a conviction for a crime not involving fraud or dishonest is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than 1 year, so typically a felony. There are special rules for criminal Ds and other witnesses:

Crim D: the evidence is admissible ONLY IF its probative value outweighs the prejudicial effect to that D. This is a stricter-than-usual balancing test to protect Ds who take the stand in their own defense.

Other Witnesses: Such evidence must generally be admitted. The court does, however, have the discretion to exclude the evidence when the party objecting to the impeachment shows it violates rule 403 standards.

Question 31

What happens if a counsel is trying to impeach a witness’s character for truthfulness with a conviction that is more than 10 years old?

Answer 31

If more than 10 years has elapsed from the time of the conviction (or release from confinement, whichever is later, then the evidence of conviction is admissible only if:

1. the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs is prejudicial effect, AND
2. the proponent gives an adverse party reasonable written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence.

Question 32

What happens if a counsel is trying to impeach a witness’s character for truthfulness with a conviction that has been pardoned:

Answer 32

Evidence of a witness’s conviction is not admissible if the conviction has been the subject of a pardon annulment, or other action based on a finding of innocence. This rule also applies to an action based on a finding that the witness has been rehabilitated, but only if the witness has not been convicted of a later felony.

Question 33

What happens if a counsel is trying to impeach a witness’s character for truthfulness with a juvenile adjudication?

Answer 33

Evidence of a juvenile adjudication is not admissible to impeach a defendant when the witness is not the defendant; and evidence of a juvenile adjudication can be used to impeach a witness’s character for truthfulness only if:

1. it is offered in a crim case
2. an adults conviction for that offense would be admissible to attack the adult’s credibility, AND
3. Admitting the evidence is necessary to fairly determine guilt or innocence.

A criminal D can also use that to impeach a witness’s credibility by using a juvenile adjudication to show bias, such as when that adjudication can provide motive.

Question 34

What are the limitations upon introducing specific instances of conduct against a witness?

Answer 34

The judge may refuse to allow such questioning of a witness under the fed rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or fed rule 611 (protection of the witness from harassment or undue embarrassment).

Also, the lawyer who examines the witness must have a good-faith basis for believing that the misconduct occurred before asking the witness about it.

Question 35

When it comes to specific instances of conduct to attack or support a witness’s character for truthfulness, can arrests be introduced?

Answer 35

Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for the purpose of impeaching the witness’s character for truthfulness; however, the witness may be cross-examined about the underlying conduct that lead to the arrest.

Question 36

If a counsel is trying to impeach a witness’s character for truthfulness with a conviction, what is the required manner of proof?

Answer 36

Evidence of a prior conviction may be produced by way of an admission by the witness, whether during direct testimony or during cross, as well as by extrinsic evidence, such as a record of the conviction.

Evidence of a prior conviction is admissible even if an appeal is pending (if it would otherwise be admissible)(

Question 37

Generally, when can prior inconsistent statements be used to impeach a witness?

Answer 37

A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness.

Question 38

Does the examining counsel need to show the prior statement?

Answer 38

no; a party who is examining a witness about the witness’s prior statement is not required to show it or disclose its contents to the witness. But the statement must be shown, or its contents disclosed, to an adverse party’s attorney upon request.

Question 39

When can extrinsic evidence of a witness’s prior inconsistent statement be introduced?

Answer 39

Extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.

Question 40

Under general circumstance, extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny. What are the exceptions to this rule?

Answer 40

The opportunity to explain or deny a prior inconsistent statement does not apply when the statement:

1. impeaches a hearsay declarant, or
2. qualifies as an opposing party’s statement under Rule 801(d)(2)

Question 41

What about extrinsic evidence of a prior inconsistent statements a collateral (i.e. irrelevant) matter?

Answer 41

Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding collateral (i.e. irrelevant) matter; the questioning party is bound by the witness’s answer.

Question 42

What is the general rule on Bias or Interest of witnesses?

Answer 42

Because a witness may be influenced by his relationship to a party (such as employment), his interest in testifying (such as to avoid prosecution themself), or their interest in the outcome of the case (like if they are the recipient of an inheritance), a witness’s bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground.

Although Fed Rules do no expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced.

On the MBE, it’s usually witness who are employees or are testifying in exchange for reduced or dropped charges.

Question 43

What is the general rule on sensory competence and witnesses?

Answer 43

A witness may be impeached by showing a deficiency in her testimonial capacities to receive, recall or relate information. This can be achieved by demonstrating that the witness is physically or mentally impaired, or through evidence of outside interference with the witness’s abilities, such as thunder impeding ability to hear or darkness impeding ability to see.

Question 44

How does one impeach a hearsay declarant?

Answer 44

When a hearsay statement is admitted into evidence, the credibility of the declarant may be attached (and if attacked, supported) by any evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny any inconsistent statement or conduct, whether such statement or conduct occurred before or after the hearsay statement. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, then the party is entitled to examine the declarant of the statement as if under cross-examination.

NOTE: similar impeachment treatment is accorded a nonhearsay statement made by a co-conspirator, agent or authorized spokesperson for an opposing party that has been admitted into evidence.

Question 45

How are witnesses rehabilitated?

Answer 45

A witness who has been impeached may be rehabilitated by the introduction rebuttal evidence by either party to support the witness’s credibility. Rehabilitation may be accomplished by:

1. Explanation or clarification on redirect examination
2. Reputation or opinion evidence of his character for truthfulness, if his character was attacked on that ground under 608 (a), OR
3. A prior inconsistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

Question 46

When are the religious opinions or beliefs of witness admissible/

Answer 46

Evidence of a witness’s religious opinions or beliefs is not admissible to attack or support a witness’s credibility. However, such evidence may be admissible to show bias or interest such as when the witness is affiliate with a church that is party to the lawsuit.

Question 47

when and how can a witness be impeached by contradictory evidence?

Answer 47

A witness may be impeached by evidence that contradicts the witness’s testimony. Impeachment may be by extrinsic evidence as well as by cross-examination.

EX: the P in a negligence action based on a car accident testifies that due to the D’s reckless driving, the P’s car was damaged. The D may introduce a record of an insurance claim filed by the plaintiff prior to the accident for such damage due to another incident. Alternatively, the D attorney may cross examine the plaintiff about that claim.

Question 48

What about impeaching a witness on collateral issues?

Answer 48

While the Fed Rules do not explicitly prohibit impeachment on collateral issues, a court may refuse to admit evidence related to a collateral issue under the rule 403 balancing test. Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead , the party must accept the witness’s testimony.

EX: A D is charged with assault. A prosecution witness testifies that the D assaulted the victim, who was wearing a plaid shirt. The D may not call another witness to testify that the victim was wearing a striped shirt in order to establish the type of shirt that the victim was wearing.

Question 49

When can a witness have their present recollection refreshed?

Answer 49

A witness may examine any item (such as a writing or photograph) to ‘refresh’ the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (so, the witness cannot read from the refreshing document).

Question 50

what are the adverse party’s options when an item is used to refresh a witness’s testimony?

Answer 50

When the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to intro any relevant portion into evidence. If the producing party contains unrelated matter, the court may examine the document in camera and delete any unrelated portion before ordering that the rest be delivered to the adverse party. The adverse party may object to the deletion, in which case the deleted portion must be preserved in the record.

Evidentiary Purpose: When an adverse party seeks to introduce a writing used to refresh a witness’ memory, the writing typically will be admissible for only the purpose of impeaching the witness’s credibility. it will be admissible for substantive purposes only if it satisfies the other restrictions on admissibility, such as the hearsay rule.

When the refreshing of a witness’s memory with a writing takes place before the witness testifies, the court may permit an adverse party to utilize these options, if justice so requires.

Question 51

What happens when the adverse party fails to produce or deliver the writing when a witness is having their present recollection refreshed?

Answer 51

Criminal Case: if the prosecution refuses to comply with the court order to produce or deliver a writing, the court must strike the witness’s testimony, or may, when justice requires, declare a mistrial. In other circumstances, the court is free to issue any appropriate order.

Question 52

How does past recollection recorded work?

Answer 52

A memorandum or record about a matter that a witness once had knowledge of but now has insufficient recollection of to testify to it may be admissible under a hearsay exception. Although the record may be read into evidence, it is received as an exhibit only if offered by an adverse party.

Question 53

How are refreshed and recorded recollections distinguished?

Answer 53

The item used to refresh a witness’s present recollection is generally not admitted into evidence, but a document introduced under the recorded recollection hearsay exception may be.

Question 54

When are lay witnesses admissible?

Answer 54

A lay witness is generally not permitted to testify as to his opinion. However, lay opinions are admissible with respect to common-sense impressions such as appearance, intoxication, speed of vehicle, or another’s emotions. To be admissible, the opinion must be:

1. Rationally based on the perception of the witness and
2. Helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue.
3. Not be based on scientific, technical, or specialized knowledge.

Question 55

What must a court determine before an expert witness may testify?

Answer 55

Before an expert witness may testify, the court must first determine that the subject matter of the witness’s testimony:

1. is scientific, technical or other specialized knowledge, in order to ensure the reliability of the testimony; and
2. will help the trier of fact understand the evidence or determine a fact in issue in order to ensure the relevance of the testimony.

In other words, the court looks to ensure the testimony is reliable and relevant through the above tests.

Question 56

After expert testimony is determined to be reliable and relevant, an expert witness may testify as to her opinion, provided that:

Answer 56

1. the witness is qualified as an expert by knowledge, skill experience, training or education.
2. The testimony is based on sufficient facts or data
3. The testimony is the product of reliable principles and methods
4. The witness applied the principles and methods reliably to the facts of the case.

PLUS: the witness must also possess a reasonable degree of certainty in her opinion, such as by using language like ‘probably.’

Question 57

With witness testimony, what is the test for reliable principles and methods?

Answer 57

Testimony is the product of reliable principles and methods when:

The factual data, principles and methods used as a basis for the testimony are of the type reasonably relied on by experts in the field, although the data need not be admissible itself.

Question 58

Is an expert witness’s opinion admissible when it reaches the ‘ultimate issue’ in a case?

Answer 58

Yes; generally, an expert’s opinion may be admissible even though the opinion embraces an ultimate issue in the case (including the D’s state of mind). However, an expert MAY NOT state an opinion about whether a criminal D had the requisite mental state of any element of the crime charged or of a defense. That determination can only be made by the trier of fact.

Question 59

What is the proper basis for an expert witness’s opinion?

Answer 59

The expert’s opinion may be based on facts and data that the expert has personally observed or about which the expert has been made aware. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on these kinds of facts and data in forming an opinion on the subject. If such facts are inadmissible, the proponent may still disclose them to the jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 60

Do expert witnesses need to first disclose their underlying facts and data?

Answer 60

No, an expert may state an opinion and give the reasons for it without first testifying as the the underlying facts or data, unless the court orders otherwise. Another party, when cross-examining the expert, may, of course, require the expert to disclose the facts or data.

Question 61

Are hypotheticals required when an expert is testifying?

Answer 61

No; In making facts knows to the expert at trial, use of a hypothetical question is not required.

Question 62

What is the role of the court-appointed expert?

Answer 62

The court may appoint an expert witness and must inform the expert, either orally or in writing, of the expert’s duties. Such a witness must advise each party of any findings. Each party may depose the witness, call the witness to testify, and cross-examine the witness. The court may authorize disclosure to the jury that the court appointed the expert. In a criminal case, the expert is paid by fund provided by law; in most civil cases, the expert’s compensation is paid by the parties.

Question 63

Are interpreters subject to the rules of expert witnesses?

Answer 63

Yes