Witnesses & Impeachment (Module 6-7)

Question 1

Competency of Witness

Answer 1

Generally presumed competent until otherwise established; must:

1) have personal knowledge (can prove personal knowledge w/ own testimony)
2) oath/affirmation

Question 2

Incompetent Witnesses

Answer 2

1) children (case-by-case determination)

2) insanity (can testify if they have the capacity)

3) judge/juror in this trial can’t testify

Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced

Question 3

Jurors Testifying about Past Trial

Answer 3

Cannot testify about what occurred during the deliberations and what affected their vote

Can testify about:
- extraneous prejudicial info
- outside influence
- mistake in the verdict form
- clear statement by other juror that they had racial animus

Question 4

Dead Man Acts

Answer 4

Not in FRE, some states have and q will specify (e.g., Erie)

In a civil case, an interested person is incompetent to testify against the decedent’s estate/successors about a personal transaction bt them and the decedent

interested = gain/lose by judgement, judgement could be used against them in subsequent action

Question 5

Leading Questions

Answer 5

Generally only allowed on cross-exam, but will allow on direct if:

1) elicit preliminary or introductory matter
2) witness has loss of memory, immaturity, or physical/mental weakness
3) hostile witness, adverse party or witness associated with adverse party

Question 6

Scope of Cross-Exam

Answer 6

Limited to the scope of the direct examination (including all rxble inferences drawn from it)

Can test credibility of the witness (i.e., impeach)

Question 7

Improper Questoins/Answers

Answer 7

Questions can’t be misleading, argumentative, conclusionary, harrassing/embarrasing. etc.

Answers that lack foundation (insuff personal knowledge) or don’t properly respond to the question can be stricken

Question 8

Refreshing Witness Recollection

Answer 8

W’s present recollection of facts they have personal knowledge of fails them during testimony, can quickly refresh; any writing can be used

Don’t require authentication because is not submitted into evidence

When W refreshed while on the stand, adverse party can:

1) look at the writing
2) cross-exam witness about the writing
3) introduce the writing into evidence
Note: if witness was refreshed before taking the stand, these options can only happen if court decides justice requires

Question 9

Reading Recorded Recollection into Evidence

Answer 9

Can be READ into evidence if a proper foundation is laid:

1) W has insufficient recollection
2) W had personal knowledge
3) Record was made or adopted by W
4) Record was made when the matter was fresh in W’s mind
5) Witness vouches for its accuracy

Adverse party ONLY can have the actual recorded document made into an EXHIBIT

Question 10

Lay-Witness Opinion Testimony

Answer 10

Is only admissible if:

1) based on the witness’s perception
2) helpful to understand W’s testimony or fact in issue, AND
3) not based on specialized knowledge

Examples: appearance of a person, state of emotion, voice/handwriting ID, speed of moving object, rational/irrational nature of another’s conduct, intoxication

Question 11

Opinion Testimony of Expert Witness

Answer 11

Must be more likely than not that:

1) specialized knowledge would assist trier of fact
2) based on sufficient facts/data
3) reliable principles/methods
4) qualified by specialized knowledge

Can give on an opinion on the ultimate issue in the case but in a criminal case where D’s mental state is an element of the crime/defense cannot

Question 12

Proper Factual Basis for an Expert Witness

Answer 12

Can be based on any of the following:

1) Expert’s personal observation
2) Facts made known to the expert during the trial
3) Facts not known personally but are the type to be rxbly relied upon by other experts in the field (those facts do not have to be disclosed unless reverse 403 balancing says otherwise)

Question 13

Reliability of Expert Witness’s Principles/Methodologies

Answer 13

Judge is the gatekeeper to decide; will use the following factors:

TRAP

T - testing of principle/method
R - rate of error
A - acceptance by experts in fiield
P - peer review

Question 14

Use of Learned Treatises During Examination

Answer 14

Can be used to impeach experts AND as substantive evidence (i.e., to prove what the treatise says is true)

Limitations:
1) established as reliable by expert testimony or judicial notice
2) must be used in the context of exam/cross-exam of expert witness
3) cannot be an exhibit

Question 15

Bolstering Witness

Answer 15

Can’t bolster/accredit the witness until after they have been impeached (W can’t bolster their own testimony either)

Exceptions:
1) evidence that W made a timely complaint (ex. in a sexual assault case)
2) W’s prior statement of identification (can also serve as substantive evidence)

Question 16

Methods of Impeachment

Answer 16

FACTS SPECIFIC TO THE CASE
1) prior inconsistent statement
2) bias
3) sensory difficulty
4) contradiction

GENERAL BAD CHARACTER FOR UNTRUTHFULNESS
5) opinion/rep
6) prior convictions
7) bad acts

Question 17

Prior Inconsistent Statement (Impeachment Method)

Answer 17

• Can show by cross-exam or extrinsic evidence that W made statements inconsistent with their testimony; if using extrinsic evidence, then proper foundation must be laid
• if just using using to impeach, does not have to have been a sworn statement
• If it was made under OATH at a prior proceeding then it can be admitted as substantive evidence (i.e., nonhearsay)

Question 18

Foundation for Extrinsic Evidence of Prior Inconsistent Statement

Answer 18

If introducing extrinsic evidence of a PIC, must:
1) give witness opportunity to explain/deny the statement (can be before or after extrins evid is introduced)
2) adverse party given opportunity to examine the witness

Exceptions for foundation requirement:
1) opposing party’s statement
2) hearsay declarant is the W
3) where justice requires

Question 19

Bias (Impeachment Method)

Answer 19

Evidence that W is biased or is interested in the outcome of the case to show they have motive to lie

Foundation:
W must first be asked about the facts that show bias before extrinsic evidence can be introduce

Question 20

Sensory Deficiencies (Impeachment Method)

Answer 20

Can be impeached by showing that perception/recollection was impaired

No foundation requirement

Question 21

Contradictory Facts (Impeachment Method)

Answer 21

Cross-examiner can try to make witness admit they lied on direct examination; no foundation is required for extrinsic evidence, but it must relate to a central issue and not be collateral (collateral statements can never be impeached)

Question 22

Opinion/Rep for Untruthfulness (Impeachment Method)

Answer 22

Can impeach a witness by calling a character witness to show W’s own bad character for truthfulness; i.e., extrinsic evidence is allowed to impeach a witness’s truthfulness

Question 23

Past Conviction (Impeachment Method)

Answer 23

Arrest or indictment not sufficient must be actual conviction; no foundation required

**Crimes of Dishonesty **
- perjury, false statement, embezzlement, false pretenses, fraud
- can ALWAYS be brought in

Felony not involving dishonesty
- if W is the criminal defendant, then prosecution must show that probative value outweighs prejudicial effect
- if any other type of W, prejudicial effect cannot substantially outweigh probative value (normal 403)

Crimes of 10+ years ago cannot be admitted unless probative value substantially outweighs prejudicial effect (reverse 403)

If D was pardoned for rehabilitation or for innocence can’t bring in

Question 24

Bad Acts Involving Untruthfulness (Impeachment Method)

Answer 24

Requirements:
- On cross-exam
- at judge’s discretion
- no extrinsic evidence

Can be questioned about misconduct is probative if truthfulness; must have a good-faith basis to believe W did it

Can’t refer to any consequences that stemmed from the misconduct (ex. stole from job and got fired, can’t talking about firing)

Note: if being used to show bias then extrinsic evid allowed

Question 25

Impeachment of Hearsay Declarant

Answer 25

Credibility can be attacked by the same methods as a normal witness (including not having opp to explain/deny a PIS)

Question 26

Rehabilitation of Witness

Answer 26

Methods:

1) explanation on redirect
2) rep/opinion of another witness for this W’s good character for truthfulness
3) prior consistent statement in two situations:
- if W is attacked for lying/exaggerating for some motive, can intro statement they made before that motivation came into existence
- if W is attacked for inconsistency or faulty memory, can introduce prior consistent statement
Note: PCS is admissible as substantive evidence (exception to hearsay)