Witnesses

Question 1

What is required for a competent witness?

Answer 1

BOTH:
• personal knowledge, and
•oath or affirmation

Question 2

What is a dead man’s statute? Does it apply under the Federal Rules?

Answer 2

in a civil action, an interested witness is incompetent to testify:
• in own interest…
• against estate of decedent…
• concerning communications or transactions between the witness and decedent

The statute does not apply under the federal rules

Question 3

Generally, when are leading questions allowed and not allowed?

Answer 3

NOT ALLOWED: direct examination

ALLOWED: cross-examination

Question 4

When are leading questions allowed on direct examination?

Answer 4

• preliminary/introductory matters
• youthful/forgetful witness
• hostile witness
• adverse party or someone under his control (presumed hostile)

Question 5

What is the rule regarding refreshing a witness’s memory?

Answer 5

• If a witness’s memory fails him, he may be shown any tangible item to refresh his memory, but the party may not introduce the refreshing item
• the opposing party may inspect the item, use it on cross-examination, and introduce it into evidence

Question 6

What is the rule for past recollection recorded?

Answer 6

It is a hearsay exception, allowed if (satisfy all):
•writing fails to jog witness’s memory
•witness had personal knowledge formerly
• witness made or adopted writing
• making/adoption occurred while event was fresh in witness’s memory
• witness can vouch for accuracy of writing when made/adopted

Question 7

When is lay person opinion evidence admissible?

Answer 7

When it is both:
•rationally based on witness’s perception (personal knowledge), and
• would be helpful to jury

Question 8

What are the three requirements for expert witness opinion testimony?

Answer 8

(1) Qualifications (education and/or experience)
(2) Proper subject matter (specialized knowledge that will be helpful to jury in deciding a fact)
(3) Opinion based on reasonable degree of probability/certainty, drawn from either (i) personal knowledge, (ii) other evidence admitted at trial, or (iii) facts outside the record (hearsay) if of a type reasonably relied upon by experts in the particular field

Question 9

What factors determine whether expert’s methods are reliable to reach their opinions?

Answer 9

• Testing of principles and methods
• Rate of error
• Acceptance by other experts in some discipline (general acceptance not required)
• Peer review/publication

Question 10

How may a learned treatise be used in aid of expert testimony?

Answer 10

(hearsay exception)
DIRECT EXAM: read into evidence to corroborate expert (substantive evidence)
CROSS EXAM: read into evidence to impeach and contradict opponent’s expert (substantive evidence)
LIMITATION: may not be introduced as exhibit

Question 11

Is opinion on an ultimate issue admissible?

Answer 11

Yes, but like other opinion testimony, it must be helpful to the jury.
EXCEPTION: in criminal cases, expert can’t testify directly to a criminal defendant’s mental state

Question 12

What subject matter is allowed on cross-examination?

Answer 12

BOTH:
• matters within the scope of direct examination, and
• matters that test the witness’s credibility

Question 13

When is a party allowed to bolster his own witness’s credibility?

Answer 13

Not until the witness’s credibility was attacked.

Question 14

If a witness has not had her credibility attacked, when may prior CONSISTENT statements be introduced?

Answer 14

When the witness made a prior identification of a person (must also testify at trial and be subject to cross examination)

Question 15

What methods of impeachment cannot be proven with extrinsic evidence?

Answer 15

• Prior bad acts

* Collateral contradictory facts

Question 16

When extrinsic evidence is allowed to impeach a witness, must the witness first be asked about the impeaching fact?

Answer 16

No, unless the impeachment is for bias

Question 17

What are the two ways to use a method of impeachment?

Answer 17

• confronting the witness

* extrinsic evidence

Question 18

What is the rule for prior inconsistent statements?

Answer 18

• The statement may be used to IMPEACH a witness.
• The statement may be used as SUBSTANTIVE evidence if (1) the witness is currently subject to cross-examination and (2) the prior statement was under oath (3) as part of a formal hearing, proceeding, trial, or deposition

Question 19

Must a witness be confronted with impeaching prior inconsistent statements while still on the stand?

Answer 19

No, just needs an opportunity at some point to return and explain or deny the inconsistent statement.
EXCEPTION: No opportunity to explain need be given if the witness is the opposing party. (Note that the opposing party’s prior statement is a party admission, and thus non-hearsay.)

Question 20

What is evidence of bias?

Answer 20

Any fact giving witness a reason to show favoritism or hostility to a party.

Question 21

What are the confrontation and extrinsic evidence rules for impeachment by bias?

Answer 21

• A witness must be confronted with alleged bias while on the witness stand
• Once the witness is confronted, bias may be proven by extrinsic evidence

Question 22

What are the confrontation and extrinsic evidence rules for impeachment by sensory deficiencies?

Answer 22

• Confrontation is not required.

* Extrinsic evidence is allowed.

Question 23

What kind of character evidence is allowed to impeach a witness? What are the confrontation and extrinsic evidence rules?

Answer 23

KIND: Bad reputation or opinion about the witness’s character for truthfulness
CONFRONTATION: not required
EXTRINSIC EVIDENCE: allowed

Question 24

What is the rule for impeachment by prior criminal conviction?

Answer 24

AUTOMATICALLY ADMISSIBLE: conviction of any crime where the prosecution was required to prove a false statement as an element of the crime
DISCRETIONARY ADMISSIBILITY: Conviction of any other felony, unless probative value on witness’s credibility is outweighed by danger of unfair prejudice to a party
TIME LIMIT: in either category ↑, conviction or release from prison must be within 10 years of trial. If more time has elapsed, not admissible unless the probative value is substantial.

Question 25

What evidence may a party use to impeach by prior criminal conviction?

Answer 25

• ask the witness, or

* extrinsic evidence (record of conviction) ––no confrontation required

Question 26

When may prior bad acts be used to impeach a witness? What basis must the cross-examiner have for the inquiry? What are the confrontation and extrinsic evidence rules?

Answer 26

When they reflect adversely on the witness’s character for truthfulness.
BASIS FOR INQUIRY: good faith
CONFRONTATION: only allowed on cross exam
EXTRINSIC EVIDENCE: not allowed

Question 27

When is extrinsic evidence prohibited to contradict a witness?

Answer 27

When the issue is collateral (i.e., no SIGNIFICANT relevance to the case or the witness’s credibility)

Question 28

When and how may a witness’s good character for truthfulness be rehabilitated?

Answer 28

WHEN: only when impeachment clearly suggested the witness was lying, as opposed to merely being mistaken
HOW: character witnesses giving reputation/opinion evidence for truthfulness

Question 29

When is a prior consistent statement allowed? For what use?

Answer 29

WHEN ALLOWED: When the witness’s trial testimony is charged as a recent fabrication, and the prior consistent statement was made before the motive to fabricate arose.
USES: rehabilitate witness’s character, substantive evidence (hearsay exception)