Witnesses

Question 1

Jurors testifying at the trial

Answer 1

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 the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members).

Question 2

Jurors testifying after the trial

Answer 2

During an inquiry into the validity of a verdict, a juror generally may not testify about:

i) Any statement made or incident that occurred during the course of the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.

Question 3

What jurors can testify about

Answer 3

A juror may testify about whether:

i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.

The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict.

Question 4

Personal Knowledge

Answer 4

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

Question 5

Jurors testifying at trial

Answer 5

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 the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members).

Question 6

Jurors testifying after trial

Answer 6

During an inquiry into the validity of a verdict, a juror generally may not testify about:

i) Any statement made or incident that occurred during the course of the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.

Question 7

Exceptions for testifying jurors

Answer 7

1) Exceptions
A juror may testify about whether:
i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.
The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict.

Question 8

Dead mans statute

Answer 8

At common law, a party with a financial interest 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 and the testimony was adverse to the estate, unless there was a waiver. Dead Man’s Statutes do not apply in criminal cases.

Question 9

Who can be impeached

Answer 9

A witness may be impeached by calling into question her credibility. Typically, a witness’s testimony is challenged based on her character for untruthfulness, bias, ability to perceive or testify accurately, or prior statement that contradicts the witness’s testimony at trial. Impeachment evidence may be presented through the witness’s own testimony, by the testimony of another witness, or by other extrinsic evidence that contradicts the witness’s testimony.

Question 10

Evidence of an arrest

Answer 10

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 11

Use of Extrinsic Evidence

Answer 11

When, on cross-examination, 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 (e.g., suspension from a governmental job for improper personal use of governmental property).

Question 12

Witnesses criminal convictions

Answer 12

A witness’s character for truthfulness may be impeached with evidence that the witness has been convicted of a crime, subject to the limitations discussed below. It does not matter whether the conviction is for a state or federal crime.

Question 13

Crimes involving dishonesty

Answer 13

Subject to the 10-year restriction (see below), 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. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof (or admission) of an act of dishonesty or false statement, such as perjury, fraud, embezzlement, or false pretense. Crimes of violence, such as murder, assault, and rape, are not crimes involving dishonesty or false statement, even though the perpetrator acted deceitfully in committing the crime of violence.

Question 14

Crimes not involving dishonesty

Answer 14

Subject to the 10-year restriction (see below), a conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than one year (typically, a felony

Question 15

Defendant as a witness and crimes not involving dishonesty

Answer 15

When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant. This stricter-than-usual balancing test gives extra protection to a criminal defendant who takes the stand in his own defense.

Question 16

Other witness and crimes not involving dishonesty

Answer 16

For witnesses other than a criminal defendant, such evidence generally must be admitted. The court does have the discretion, however, to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect

Question 17

Convictions more than 10 years old

Answer 17

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

i) The probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
ii) 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 18

Juvenile Adjudications to impeach

Answer 18

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

i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.

Question 19

Extrinsic evidence of prior inconsistent statements

Answer 19

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 20

Bias or Interest

Answer 20

Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt 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.

Question 21

Sensory competency

Answer 21

A witness may be impeached by showing a deficiency in her testimonial capacities to perceive, 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 the ability to hear or darkness impeding the ability to see.

Question 22

Rehabilitating impeached witness

Answer 22

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

i) Explanation or clarification on redirect examination;
ii) Reputation or opinion evidence of his character for truthfulness, if the witness’s character was attacked on that ground under Fed. R. Evid. 608(a); or
iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

Question 23

Impeachment by contradictory evidence

Answer 23

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.

Question 24

Present recollection refreshed

Answer 24

A witness may examine any item (e.g., writing, 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 (e.g., the witness cannot read from the refreshing document).

Question 25

Past Recollection Recorded

Answer 25

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 (see § VII.B.5. Recorded Recollection, infra). Although the record may be read into evidence, it is received as an exhibit only if offered by an adverse party.

Question 26

Lay witness

Answer 26

A lay (non-expert) 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 a vehicle, or another’s emotions. To be admissible, the opinion must be:
i) Rationally based on the perception of the witness; and
ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.

Question 27

Subject matter of an expert witness

Answer 27

Subject matter of testimony
Before an expert witness may testify, the court must first determine that the subject matter of the witness’s testimony:
i) Is scientific, technical, or other specialized knowledge, which focuses on the reliabilityof the testimony; and
ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.

Question 28

Ultimate issue

Answer 28

Generally, an expert’s opinion may be admissible even though the opinion embraces an ultimate issue in the case (including the defendant’s state of mind). However, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense. That determination lies in the province of the trier of fact

Question 29

Lack of knowledge

Answer 29

A party can challenge the credibility of an expert witness on cross-examination by attacking the adequacy of the expert’s knowledge, both their general knowledge in their field of expertise and their specific knowledge of the facts underlying their testimony.

Question 30

Paying a witness

Answer 30

A lawyer may not offer or pay a witness any consideration:

i) In excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence, except that an expert witness may be offered and paid a noncontingent fee;
ii) Contingent on the content of the witness’s testimony or the outcome of the litigation; or
iii) Otherwise prohibited by law.