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Evidence > Witnesses and Testimonial Evidence > Flashcards

Witnesses and Testimonial Evidence Flashcards

1
Q

All witnesses must be _____.

A

Competent

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2
Q

What are the four major components of competency?

A

Perception (must have observed)

Memory (must remember)

Communication (must be able to comm. obs.)

Sincerity (oath or affirmation).

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3
Q

What FRE contains the Dead Man Statute?

A

Trick question: no DMS in the FRE

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4
Q

When will a federal court consider a DMS?

A

When hearing a case in diversity in which the law of the controlling state has one.

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5
Q

What does a typical DMS statute say?

A

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).

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6
Q

Are narrative-type questions permitted during testimony?

A

No.

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7
Q

Why is a leading question ordinarily bad?

A

It suggests the answer.

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8
Q

What are the five situations in which leading questions are permitted?

A

On cross

For preliminary matters

Impaired witness

Adverse party

Hostile witness

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9
Q

Are misleading questions ok?

A

No

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10
Q

Are compound questions ok?

A

No

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11
Q

Are argumentative questions ok?

A

No

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12
Q

Can a witness read his/her testimony?

A

No

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13
Q

Can a witness use a writing to refresh his/her recollection?

A

Yes

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14
Q

What are the two situations in which a witness may use a writing in aid of oral testimony?

A

Refresh recollection

Recorded recollection

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15
Q

When a witness’ memory fails, what can be used to jog her memory?

A

Anything

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16
Q

If something is used to refresh memory, does it go into evidence?

A

Not unless other side wants it to be.

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17
Q

If something is used to refresh memory, may the other side see it? Use it in cross? Introduce it into evidence

A

Yes

Yes

Yes

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18
Q

What happens with a “recorded recollection”?

A

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.

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19
Q

What are the five foundational requirements for a recorded recollection?

A

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

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20
Q

When using a recorded recollection, does the written instrument go into evidence?

A

No, it is read into evidence.

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21
Q

Is a recorded recollection hearsay?

A

Yes, but it constitutes an exception.

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22
Q

What are the two requirements for lay witness opinions? When it is . . .

A

Rationally based on the perception of the witness; AND

Helpful to the trier of fact.

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23
Q

What are the four basic requirements of expert witness opinion testimony?

A

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.

24
Q

What does “appropriate subject matter” mean in the context of an expert witness’ opinion? (+ 2 subparts)

A

Something that will assist the trier of fact (reliable methodology + relevance)

25
Q

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) . . .

A

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)

26
Q

At state law, how does one establish a learned treatise as authoritative? (4 ways)

A

If expert relies on it

Elicit an admission on cross

Call your own expert to say it is authoritative and reliable

Judicial notice

27
Q

May a plaintiff begin by reading from the treatise?

A

No

28
Q

May text from the treatise be used to impeach contrary opinion by a defense expert?

A

Yes, once established as authoritative

29
Q

Under the FRE, may a treatise be used to support your own expert’s opinion?

A

Yes

30
Q

Under the FRE, may a treatise be offered for its truth?

A

Yes, if established as reliable.

31
Q

What are the limitations placed on using a treatise for its truth?

A

Expert must testify (unless judicial notice) AND

Can only be read into evidence.

32
Q

If a witness refuses to testify on cross, what should counsel do?

A

Move to strike the direct

33
Q

What is the scope of cross?

A

Scope of direct

34
Q

Is extrinsic evidence permitted to contradict/impeach a witness on collateral matters?

A

No

35
Q

When and only when can you bolster your own witness’ credibility?

A

When impeached by opposing counsel

36
Q

When are prior consistent statements ok in bolstering a witness? (i.e., not hearsay)

A

When the statement is one of identification and was made by a witness who testifies at trial.

37
Q

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?

A

No.

This is pure hearsay. Since Victor is not present, D loses the right to confront him.

38
Q

If a prior statement of ID is properly-admitted, does it come in for its truth?

A

Yes.

39
Q

Can a party impeach its own witness?

A

Yes

40
Q

What are the 5 basic impeachment techniques?

A

PIS

Showing of bias, interest, or motive to misrepresent

Prior convictions

Specific acts of lying or deceit

Bad reputation for truth or veracity

41
Q

When is the only time a PIS can be admitted for its truth?

A

When given under oath AND given at a trial, hearing, deposition, or other proceeding.

42
Q

Can extrinsic evidence be used to prove a prior PIS?

A

Yes

43
Q

What foundation must be laid before using a PIS?

A

Allow witness opportunity to admit or deny.

44
Q

When can a PIS be considered an admission? How does this differ?

A

When made by a party.

Differs in that it can be used for its truth, not just for impeachment.

45
Q

What is the proper foundation to use extrinsic evidence for using bias, interest, or motive?

A

Inquiry on cross of the target witness

46
Q

What sort of prior convictions are always allowed for impeachment purposes?

A

Any crime involving dishonesty (i.e., deceit) or false statements.

Fraud, larceny by trick, embezzlement, perjury.

47
Q

What sort of prior convictions are subject to 403 for impeachment purposes?

A

Felonies not involving dishonesty or false statements.

48
Q

How remote can a conviction be for impeachment purposes?

A

No more than 10 years.

49
Q

Is extrinsic evidence of a prior conviction admissible? If no, why? If yes, what kind?

A

Yes, certificate of conviction.

50
Q

What sort of specific prior acts can be inquired about on cross?

A

Deceit or lying

51
Q

Is extrinsic evidence permitted to prove prior acts of deceit or lying?

A

No. Limited to cross.

52
Q

Is extrinsic evidence permitted to prove bad reputation for truth or veracity?

A

Yes, necessarily so.

53
Q

What may a witness do when testifying to reputation for truth or veracity? What may he not?

A

Give opinion

May not give specific acts

54
Q

When may opinion evidence as to good reputation be introduced?

A

Following an impeachment of character.

55
Q

Why are PCSs ineffective to rebut a PIS?

A

Still inconsistent. Does’t help much.

56
Q

Can PCSs be used to rebut a charge of recent fabrication or improper motive/influence?

A

Yes, as long as the PCS occurred before the alleged onset of the fabrication/motive/influence.

Evidence (14 decks)

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