Witnesses and Impeachment Flashcards
Generally, witnesses are presumed to be competent unless the contrary is established. To be competent a witness must _________ and __________.
1) have personal knowledge of the matter about which he is to testify.
2) declare that he will testify truthfully.
What is a dead man’s act?
A state act (not FRE!) providing that a witness who holds an interest in the property of a deceased person cannot testify about related communications/transactions with the deceased.
What is refreshing recollection?
A witness permissibly uses a writing or thing for the purpose of refreshing his present recollection. The witness may not read from the writing, but may only view it to refresh his memory.
What is recorded recollection? What is the proper foundation for recorded recollection?
If, after viewing a writing or thing to refresh his memory, a witness still fails to remember, the record itself may be read into evidence if proper foundation is laid.
Proper foundation:
1) witness made the record himself or adopted by the the record
2) witness once had personal knowledge
3) witness timely and accurately made the record
4) witness still cannot remember upon viewing the record.
T/F: once a record is read into evidence as recorded recollection, the record is part of the exhibit.
False. Even though the record can be heard and used by the jury, it cannot be admitted as an exhibit unless it is offered by an adverse party.
When is the opinion testimony of a lay witness admissible? (generally - 3 factors)
1) When the witness opines based on personal perception
2) When such an opinion would be helpful to the trier of fact
3) When the opinion is not based on scientific, technical, or specialized knowledge.
T/F: lay witness opinion admissible with respect to general appearance or condition of a person
True.
T/F: lay witness opinion admissible with respect to the speed of a moving object
True.
When is expert testimony admissible? (4 factors)
1) When scientific, technical, or specialized knowledge would be helpful to the trier of fact
2) When the opinion is based on sufficient facts and data
3) When the opinion is the product of reliable principles and methods
4) When the expert has reliably applied the principles and methods to the facts of the case
What are the three types of factual bases on which an expert may base his opinion?
1) Facts based on personal observations
2) Facts supplied to the expert at trial
3) Facts supplied to the expert outside of the courtroom, if reasonably relied upon by experts in the field.
Generally, an expert can opine on the the ultimate issue in the case, except for when?
The expert cannot opine on the defendant’s mental state when the mental state is at issue in a criminal case.
How can authoritative texts and learned treatises be used to impeach an expert witness?
1) expert must be on the stand and 2) relevant portion is read into evidence.
What is the scope of cross-examination?
Matters raised in direct examination and anything used to impeach a witness.
T/F: Generally, a party cannot bolster or accredit the testimony of his witness until the witness has been impeached.
True.
T/F: A party can only impeach the adverse party’s witness.
False. Under the FRE, any party may impeach any witness, including its own witnesses.
