Witnesses Flashcards
Character evidence is admissible in a civil case if __________.
Where character is directly in issue in a civil case, character evidence is admissible.
A defendant in a criminal case may “open the door” by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases.
When a person’s character itself is at issue in the case, character evidence is admissible. When is character “at issue” in a civil case?
Character is said to be at issue in a civil case when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense. For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case. Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief). However, these types of situations are rare.
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is “directly in issue.” Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under FRE, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.
A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff’s witness would testify that the defendant is known by all his friends as “the Menace.”
Is the proffered testimony admissible?
The testimony of the plaintiff’s witness should not be admitted to show that the defendant was negligent. Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action). Character is not directly in issue here.
While a driver was driving someone else’s car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence.
How should the court rule on the objection?
The witness’s testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is inadmissible in a civil case if offered to show that a party probably acted in conformity with that character.
Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver’s character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself.
T/F: Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert.
True. Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.
What is the rule regarding admissible expert opinion testimony?
Expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.
This test of assistance to the trier of fact subdivides into two requirements: (i) opinion must be relevant, and (ii) methodology underlying the opinion must be reliable.
To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. He must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.
A defendant is on trial for arson of a restaurant. Chemical tests by the fire department indicate that gasoline was used as the igniting agent of the fire. The prosecution calls to the stand a waitress who works at a diner near the burned restaurant. She will testify that on the night of the fire, the defendant came into the diner smelling like gasoline.
Should the court admit this testimony over the defendant’s objection?
The witness should be allowed to testify as to what she perceived. To be admissible under the Federal Rules, evidence must be probative of a material issue in the case and must be competent (i.e., not otherwise excludable). Evidence is material if it relates to an issue in the case, and it is probative if it tends to prove the fact for which it is offered. Evidence is competent if it does not violate a specific exclusionary rule. At issue here is whether the defendant started the restaurant fire. If gasoline was used to start the fire, the fact that the defendant was seen near the fire and smelled like gasoline makes it more likely that he started the fire, so the proffered evidence is material and relevant. It is also competent; opinion testimony by lay witnesses is admissible when it is: (i) rationally based on the perception of the witness; (ii) helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge. Matters involving sense recognition, such as what something smelled like, are common subjects of opinion testimony. Here, the witness’s testimony satisfies all three requirements and should be admitted.
At the trial of a lawsuit that arose out of a collision between the plaintiff’s and the defendant’s cars, the plaintiff’s attorney calls an automobile mechanic as a witness, who testifies that he has 12 years’ experience and was the only witness to the accident. The witness also testifies that he arrived at the scene immediately after the accident, which caused both cars to overturn, and saw the wheels on both cars still spinning. He testifies that the wheels of the defendant’s car were spinning faster than the wheels of the plaintiff’s car. The plaintiff’s attorney asks the witness to testify as to what speed the respective cars were traveling at the time of the accident based upon his observations of the spinning wheels. The defendant’s attorney objects.
Should the testimony regarding the speed of the cars be admitted?
The witness’s testimony regarding the speed of the cars should not be admitted because he has not been qualified as an expert in accident reconstruction. If the subject matter is such that scientific, technical, or other specialized knowledge is required to render an opinion, expert testimony is admissible and appropriate. Opinions by laypersons would not be permitted.
Here, the witness is being asked to testify as to the speed of the cars, not based on actually viewing the cars while in motion (in which case lay opinion is often accepted), but on his observation of the spinning wheels after the accident. Determination of the speed of vehicles based upon observation of the spinning wheels of such vehicles after a collision would certainly call for the application of technical or specialized knowledge, thus making the subject matter appropriate for expert testimony. The witness’s experience as an auto mechanic would not suffice to establish him as an expert in accident reconstruction. Since he is not qualified as an expert, his opinion testimony as to the speed of the cars based upon his observation of the spinning wheels will not be admitted.
A contractor for a large multistory building used an excavation subcontractor to dig the excavation for the foundation, and a structural subcontractor to begin structural work on the foundation. Just after the foundation was completed, an employee of the structural subcontractor was killed when the walls of the excavation collapsed.
The employee’s survivors brought an appropriate action against all of the involved parties. At trial, the structural subcontractor calls a civil engineer licensed by the state to testify that he examined the geologist’s reports of the soil conditions surrounding the construction site, as well as a report by the investigator who examined the site of the collapse, and that it is his (the engineer’s) opinion that the collapse was caused by the excavation subcontractor’s failure to take into consideration the composition of the soil being excavated.
Is the engineer’s testimony admissible?
The engineer’s testimony is admissible as relevant opinion testimony by an expert witness. Federal Rules permit witnesses qualified as experts to testify in the form of an opinion if the subject matter is one where scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. The expert may base his opinion on facts not known personally but supplied to him outside the courtroom (e.g., reports of other experts). Such facts need not be admissible in evidence as long as the facts are of a kind reasonably relied on by experts in the particular field. Here, the engineer, who was licensed by the state, probably qualifies as an expert on the subject of his testimony and therefore can state his opinion as to the cause of the collapse of the excavation wall.
In a personal injury action, a doctor sat in court and listened to all of the evidence regarding the plaintiff’s injuries. The defense subsequently calls that doctor to testify as to his opinion about whether the plaintiff’s injuries will prevent the plaintiff from ever working again.
May the doctor testify to this?
The doctor may testify. An expert’s opinion may be based on one or more of the following sources of information: (i) facts that he knows from his own observation, (ii) facts presented in evidence at the trial and submitted to the expert, or (iii) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. Here, the doctor’s testimony will be based on facts presented in evidence at the trial.
Personal examination of the plaintiff is not a prerequisite to testifying as an expert.
T/F: Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.
True. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act __________.
is probative of truthfulness.
D was being sued by P for driving his car negligently and injuring P. D called as a witness his brother, who was in the passenger seat of D’s car when the accident occurred. His brother testified that D was driving safely and well below the posted 55-mile-per-hour speed limit. Shortly before the trial began, the brother’s secretary telephoned P and told him that the brother has been understating his income to the government for years. The IRS has never charged the brother with tax evasion, but the secretary’s information was accurate. On cross-examination, P’s attorney asked the brother, “Have you ever cheated on your tax returns?” D’s attorney objects.
Should the objection be sustained?
The objection should be overruled because the question is a proper means of impeaching the brother’s character for truthfulness through specific instances of misconduct. Subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying). A conviction of a crime is not necessary under this rule. Cheating on one’s taxes is lying, so this would be a specific act of misconduct reflecting on the brother’s character for truthfulness.
T/F: Specific “bad acts” that show the witness unworthy of belief (i.e., acts of deceit or lying) are probative of truthfulness.
True. But extrinsic evidence is not admissible to prove such acts - impeachment must be properly limited to inquiry on cross-examination.
