witnesses and impeachment

Question 1

What is required for a witness to be considered competent?

Answer 1

1. Take an oath to testify truthfully;
2. Testify based on personal knowledge );
3. Must not be incapacitated; and
4. Must give testimony as to facts, not opinions

*under FRE, witnesses are presumed competent

Question 2

scope of testimony

Answer 2

-a lay witness MUST have personal knowledge
-an expert witness does not need to have personal knowledge

Question 3

judge’s competency as a witness

Answer 3

The presiding judge may NOT testify as a witness at the trial. the objection is automatic and need not be made.

Question 4

competency of a juror as witness

Answer 4

A juror may NOT testify as a witness before the jury of which they are a member.

Question 5

what a juror may testify to

Answer 5

-extraneous prejudicial information improperly brought to the juror’s attention;
(A juror may be questioned regarding whether or not someone brought in a newspaper article about the case, or about a communication by a juror with court personnel regarding the case.)

-that a juror made an unauthorized visit to the scene, or conducted out-of-court experiments regarding evidence presented at trial; or

-that a juror accepted a bribe, or was threatened with harm.

Question 6

impeaching the verdict

Answer 6

A juror may NOT testify as to the manner in which the jury reached its decision; such testimony, generally, is inadmissible.

Question 7

Impeachment

Answer 7

evidence which attacks a witness’s credibility

*always relevant, even if beyond the scope of the first examination. always admissible.

Question 8

who can attack the credibility of a witness

Answer 8

any party, including the party calling the witness

Question 9

rehabilitation

Answer 9

after a witness is impeached, evidence which detracts from the impeachment is admissible.

*evidence to enhance a witness’s credibility is NOT admissible under AFTER the witness has been impeached.

Question 10

methods of rehabilitation

Answer 10

1. explain or deny
2. prior consistent statement
3. character evidence for truthfulness by reputation or opinion

Question 11

collateral matter rule

Answer 11

a collateral matter is evidence solely affecting the credibility of a witness. it is otherwise irrelevant to the cause of action or defense.

Question 12

extrinsic evidence on a collateral matter

Answer 12

Impeaching with extrinsic evidence on a collateral matter is limited (not an absolute bar)

-Extrinsic evidence: any impeachment evidence other than the questions and answers of the witness being impeached)
-Collateral matter: anything that is not relevant to the cause of action.

Question 13

cross-examination while impeaching on collateral matter

Answer 13

the cross-examiner is bound by the witness’s answer

Question 14

methods of impeachment

Answer 14

1. Interest, motive, or bias
2. (sensory defects)Incapacity to observe, recall, or relate
3. (prior) Inconsistent statement (PINS)
4. Character evidence for truthfulness by reputation or opinion
5. Character evidence for truthfulness by prior bad acts
6. (prior) Conviction of crime
7. Contradiction

Mnemonic “3 I’s 4 C-ing” (“Three Eyes For Seeing”)

Question 15

Impeachment by interest, motive, or bias

Answer 15

bias or prejudice is always material and relevant. extrinsic evidence is admissible.

Question 16

impeachment by sensory defects

Answer 16

the inability to observe, communicate, or remember.

-extrinsic evidence is admissible. always relevant

Question 17

impeachment by character evidence for untruthfulness by reputation and opinion

Answer 17

a witness’s character for untruthfulness is always material and may be attacked by reputation or opinion evidence.

Question 18

impeachment by prior bad acts

Answer 18

specific bad acts of any testifying witness that are probative of the witness’s truthfulness are admissible to attack or support the witness’s credibility
*no extrinsic evidence allowed

must be by:
1. a question
2. on cross-exam
3. inquiring into the witness’s own prior bad acts bearing on truthfulness or dishonesty

*the bad acts cannot be too remote in time and must be asked in good faith

Question 19

impeachment by prior conviction of crime

Answer 19

10 years or less - Dishonesty crime - no balancing – mandatory OK

2. 10 years or less - Non-dishonesty felony - presume OK – (403 balancing – admitted unless PV outweighs DOUP)
3. 10 years or less - Non-dishonesty felony - criminal D is W – presume NOT OK (NOT 403 balancing - excluded unless PV outweighs DOUP)
4. > 10 years old - any crime - presume NOT OK (NOT 403 balancing - excluded unless PV substantially outweighs DOUP); also proponent must give opponent “reasonable written notice” (pre-trial not req’d ) of intent to use such a conviction to impeach

Question 20

impeachment by prior conviction of crime- types

Answer 20

1. Crimes punishable by death or by imprisonment for more than one year (always in civil & criminal cases if witness is not D, & if witness is the D, can be admitted if probative value of the evidence outweighs its prejudicial effect in criminal cases)
2. Convictions more than 10 years old (i.e. more than 10 years has elapsed since the date of the conviction or of the release of the witness)
   –Only if its probative value substantially outweighs its prejudicial effect, and other party was given written notice and chance to object)
3. Any crime involving dishonesty and/or false statements

Question 21

convictions older than 10 years

Answer 21

Only admissible if:

1. Its probative value substantially outweighs its prejudicial effect; and
2. Adverse party is given reasonable notice of the intent to use the crime and an opportunity to object

Question 22

When is a conviction involving dishonesty admissible to impeach?

Answer 22

If a witness has been convicted of a felony or misdemeanor involving dishonesty and it’s equal to or less than 10 years old, there is no discretionary balancing test. It will be admitted, even if it has a serious prejudicial effect.

Question 23

When is a felony not involving dishonesty admissible to impeach?

Answer 23

If witness is the criminal D:
–Only admissible if the probative value outweighs its prejudicial effect to D

If the witness is not the criminal D:
–May be admitted unless probative value is substantially outweighed by the prejudicial effect

Question 24

Is evidence of a witness’s prior juvenile conviction admissible to impeach?

Answer 24

Not admissible to impeach the defendant. Can impeach another witness if:

-Evidence is offered in criminal case;

-An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

-Admitting the evidence is necessary to fairly determine guilt or innocence

*never in a civil case

Question 25

impeachment by prior inconsistent statement

Answer 25

Will only be admitted to impeach the witness and cannot be used as a substantive evidence for the case.

*On request, other side lawyer must show a written/recorded PINS to the opponent

Question 26

“inconsistent” statement

Answer 26

prior statement must be inconsistent with the in-court testimony. Inconsistency may be found by:
1. express contradiction,
2. omission, or
3. feigned lack of memory. (you are lying that you don’t remember)

Question 27

admissibility of extrinsic evidence of PINS

Answer 27

admissible ONLY if:
1. Witness is given a chance to explain or deny the PINS at some point; no specific sequencing required; and
2. an adverse party is given an opportunity to examine the witness about the PINS; or
3. if justice so requires.

Question 28

when courts may exclude extrinsic evidence of PINS

Answer 28

1. Witness admits making the PINS (because the witness admitted making the PINS, there’s no need for the extrinsic evidence); or
2. It involves a collateral matter – meaning a matter that would not be relevant to the trial, except to impeach the witness.

Question 29

impeachment by contradiction

Answer 29

A witness can always be impeached with evidence that contradicts the witness’s testimony.
*NOT the witness’s own statement, but rather other evidence or witnesses who contradict the witness’s testimony.

Question 30

extrinsic evidence for impeachment by contradiction

Answer 30

permitted unless it involves a collateral matter

Question 31

impeachment by religious belief or opinions

Answer 31

evidence of a witness’s religious beliefs are inadmissible to impeach or rehabilitate credibility

Question 32

who controls the order of examination of witnesses and presentation of evidence?

Answer 32

the judge

Question 33

the scope of cross-examination

Answer 33

limited to the subject matter of the direct examination and matters affecting credibility

Question 34

leading questions

Answer 34

questions that suggests answers.
generally NOT allowed on direct examination

*tip: generally not allowed when the examiner and the witness are on the same side of the case.

Question 35

exceptions to leading questions

Answer 35

leading questions may be used with:
1. hostile witnesses
2. adverse witnesses (plaintiff questioning D’s witness)
3. child witnesses
4. preliminary background information
5. refreshing recollection of a witness

Question 36

writing used to refresh memory

Answer 36

*on direct examination, the examiner may jog a forgetful witness’s memory

any writing, photograph, further questioning, or other form of evidence may be used to refresh.

Question 37

will a writing used to refresh recollection be admitted into evidence?

Answer 37

NO, and therefore authentication of the writing is not required.

hearsay and the best evidence rule will not apply.

Question 38

rights of the adverse party with a writing used to refresh recollection

Answer 38

-they may inspect the evidence;

-they may cross-examine with the evidence;

-they may show the writing to the jury for comparison (with witness’s testimony); and

-they may introduce relevant portions into evidence (to put the testimony in context; the doctrine of completeness).

Question 39

exclusion/sequestration of witnesses

Answer 39

at the request of a party, or sua sponte, the court MUST order witnesses excluded from the courtroom, so that they cannot hear testimony of other witnesses

also permits an order that prohibits excluded witnesses from learning about, obtaining, or being provided with or told about trial testimony.

Question 40

exclusion of witnesses not allowed:

Answer 40

-a party
-ONE person as a non-party’s representatives designated by the attorney (an employee of a corporate party)
-any person whose presence is essential (expert, FBI investigator)
-persons exempted by statute (victim of crime)