Witnesses and Testimonial Evidence Flashcards
All witnesses must be _____.
Competent
What are the four major components of competency?
Perception (must have observed)
Memory (must remember)
Communication (must be able to comm. obs.)
Sincerity (oath or affirmation).
What FRE contains the Dead Man Statute?
Trick question: no DMS in the FRE
When will a federal court consider a DMS?
When hearing a case in diversity in which the law of the controlling state has one.
What does a typical DMS statute say?
An interested survivor cannot testify for his/her interest AGAINST the decedent or the decedent’s representatives ABOUT communications or transactions with the decedent in a civil case (unless there is a waiver).
Are narrative-type questions permitted during testimony?
No.
Why is a leading question ordinarily bad?
It suggests the answer.
What are the five situations in which leading questions are permitted?
On cross
For preliminary matters
Impaired witness
Adverse party
Hostile witness
Are misleading questions ok?
No
Are compound questions ok?
No
Are argumentative questions ok?
No
Can a witness read his/her testimony?
No
Can a witness use a writing to refresh his/her recollection?
Yes
What are the two situations in which a witness may use a writing in aid of oral testimony?
Refresh recollection
Recorded recollection
When a witness’ memory fails, what can be used to jog her memory?
Anything
If something is used to refresh memory, does it go into evidence?
Not unless other side wants it to be.
If something is used to refresh memory, may the other side see it? Use it in cross? Introduce it into evidence
Yes
Yes
Yes
What happens with a “recorded recollection”?
If the witness cannot remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.
What are the five foundational requirements for a recorded recollection?
W once had personal knowledge
Writing was made by W, under her supervision, or it was adopted by W.
Writing was made while W’s memory was fresh
Writing is reliable
W is unable to remember all or part of the transaction
When using a recorded recollection, does the written instrument go into evidence?
No, it is read into evidence.
Is a recorded recollection hearsay?
Yes, but it constitutes an exception.
What are the two requirements for lay witness opinions? When it is . . .
Rationally based on the perception of the witness; AND
Helpful to the trier of fact.
What are the four basic requirements of expert witness opinion testimony?
Subject matter must be appropriate for an expert
Expert must be qualified as such
Expert must possess reasonable probability or certainty regarding the opinion; and
Opinion must be supported by a proper factual basis.
What does “appropriate subject matter” mean in the context of an expert witness’ opinion? (+ 2 subparts)
Something that will assist the trier of fact (reliable methodology + relevance)
When it is said that an expert’s opinion must be “supported by a proper factual basis,” this means that the facts must be either (3) . . .
Facts within the expert’s personal knowledge
Facts supplied to the expert in court by the evidence (usually in hypo form); OR
Facts are the type that experts would rely upon in making out-of-court assessments (e.g., radiology reports)
At state law, how does one establish a learned treatise as authoritative? (4 ways)
If expert relies on it
Elicit an admission on cross
Call your own expert to say it is authoritative and reliable
Judicial notice
May a plaintiff begin by reading from the treatise?
No
May text from the treatise be used to impeach contrary opinion by a defense expert?
Yes, once established as authoritative
Under the FRE, may a treatise be used to support your own expert’s opinion?
Yes
Under the FRE, may a treatise be offered for its truth?
Yes, if established as reliable.
What are the limitations placed on using a treatise for its truth?
Expert must testify (unless judicial notice) AND
Can only be read into evidence.
If a witness refuses to testify on cross, what should counsel do?
Move to strike the direct
What is the scope of cross?
Scope of direct
Is extrinsic evidence permitted to contradict/impeach a witness on collateral matters?
No
When and only when can you bolster your own witness’ credibility?
When impeached by opposing counsel
When are prior consistent statements ok in bolstering a witness? (i.e., not hearsay)
When the statement is one of identification and was made by a witness who testifies at trial.
Victor picked a mugger out of a lineup and a cop witnessed it. At trial, Victor does not testify. May the cop testify to Victor’s lineup ID? Why or why not?
No.
This is pure hearsay. Since Victor is not present, D loses the right to confront him.
If a prior statement of ID is properly-admitted, does it come in for its truth?
Yes.
Can a party impeach its own witness?
Yes
What are the 5 basic impeachment techniques?
PIS
Showing of bias, interest, or motive to misrepresent
Prior convictions
Specific acts of lying or deceit
Bad reputation for truth or veracity
When is the only time a PIS can be admitted for its truth?
When given under oath AND given at a trial, hearing, deposition, or other proceeding.
Can extrinsic evidence be used to prove a prior PIS?
Yes
What foundation must be laid before using a PIS?
Allow witness opportunity to admit or deny.
When can a PIS be considered an admission? How does this differ?
When made by a party.
Differs in that it can be used for its truth, not just for impeachment.
What is the proper foundation to use extrinsic evidence for using bias, interest, or motive?
Inquiry on cross of the target witness
What sort of prior convictions are always allowed for impeachment purposes?
Any crime involving dishonesty (i.e., deceit) or false statements.
Fraud, larceny by trick, embezzlement, perjury.
What sort of prior convictions are subject to 403 for impeachment purposes?
Felonies not involving dishonesty or false statements.
How remote can a conviction be for impeachment purposes?
No more than 10 years.
Is extrinsic evidence of a prior conviction admissible? If no, why? If yes, what kind?
Yes, certificate of conviction.
What sort of specific prior acts can be inquired about on cross?
Deceit or lying
Is extrinsic evidence permitted to prove prior acts of deceit or lying?
No. Limited to cross.
Is extrinsic evidence permitted to prove bad reputation for truth or veracity?
Yes, necessarily so.
What may a witness do when testifying to reputation for truth or veracity? What may he not?
Give opinion
May not give specific acts
When may opinion evidence as to good reputation be introduced?
Following an impeachment of character.
Why are PCSs ineffective to rebut a PIS?
Still inconsistent. Does’t help much.
Can PCSs be used to rebut a charge of recent fabrication or improper motive/influence?
Yes, as long as the PCS occurred before the alleged onset of the fabrication/motive/influence.
