Witnesses & Testimonial Evidence Flashcards
What is the general rule regarding competency of a witness? What is necessary for a witness to be competent?
In order to be considered “competent” to testify, the witness must have:
- personal knowledge AND
- must take an oath or affirmation (i.e. demonstrate an understanding of the obligation to tell the trust, and a promise to tell the truth).
What is the federal rule regarding “dead man’s statutes”?
There is no rule regarding Dead Man’s Statute in federal court.
Thus, a witness is not incompetent simply because she may have an interest in the outcome of the litigation.
Apply state law on this topic in diversity cases.
What is a dead man’s statute?
In a civil action, an interested party may not testify against the estate of a deceased party about communications or transactions with the deceased party.
A person is “interested” only if the outcome of the case will have a legally binding effect on the person’s rights or obligations.
What is Virginia’s dead man’s statute rule?
In Virginia, an interested witness may testify against decedent’s estate but only if the testimony is corroborated.
When is a question considered to be “leading”? What is the rule regarding leading questions? Are there any exceptions?
A question is “leading” when the form of the question suggests the answer. Leading questions are generally not allowed on direct examination of witness, but generally are allowed on cross-examination of witness.
Exception:
Leading questions may be allowed on direct examination in four situations:
- Undisputed preliminary matters
- When necessary (refresh recollection b/c of age, physical or mental condition)
- Hostile witness
- Adverse parties
In dealing with writings to aid oral testimony of a witness, what is the rule regarding present recollection refreshed?
Witness may not read from a prepared memorandum; must testify on basis of current recollection. BUT, if a witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory.
Safeguards against abuse: If an item is used to refresh a witness’s memory, the opposing party has a right to inspect the document, use it to cross-examine, introduce it into evidence.
In dealing with writings to aid oral testimony of a witness, what is the rule regarding past recollection recorded?
A writing may be read to the jury as a “past recollection recorded” if the witness:
- once had personal knowledge;
- the witness now cannot recall the matter, and showing the writing to witness fails to job the witness’s memory;
- the writing was either made/adopted by the witness;
- the writing was made when the event was fresh in his memory; AND
- the witness can attest that, when made, the writing was accurate.
What is the method of presenting a writing when it falls under the hearsay exception of past recollection recorded?
If the foundation for a recorded recollection is satisfied then the witness may read the document to the jury, but the witness may not show the document to the jury. But the opposing party may show the document to the jury (by introducing it as an exhibit).
When is lay witness opinion testimony admissible? What type of things can a lay witness testify about?
Lay opinion testimony is admissible if it is rationally based on the witness’s personal knowledge, and helpful to the jury. A lay witness may testify about such things as sobriety, drunkenness, emotions, speed, handwriting, smells, etc…
When is a witness considered an expert witness? When is expert opinion testimony admissible? What type of things can a lay witness testify about?
Witness may testify to an opinion as an expert only if the witness is qualified (by education and/or experience), the testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury, the opinion has a proper basis, and the opinion is reasonably reliable.
Proper Basis of Opinion: The opinion must be based upon a “reasonable degree of probability or reasonable certainty,” and based on either the expert’s personal knowledge, evidence that is disclosed/admitted during the trial, OR facts outside the record but only if those facts are of a type reasonably relied on by experts in the particular field.
Reliability: To be admissible, expert opinion must be sufficiently reliable. That means the expert has used reliable methods and the expert has reliably applied those methods to the particular facts of the case. (Daubert standard - TRAP - Tested, Rates of Error, Accepted, Peer Review).
Can opinion testimony address an ultimate issue in a case? Are there any exceptions?
Yes. Opinion testimony (lay or expert) generally is permissible even if it addresses an “ultimate issue” in the case (e.g., “X was drunk, “That’s X’s signature on the check”)
Exception - In a criminal case, an expert witness may not testify that the D did or did not have the required mental state (e.g. “D’s insanity prevented him from understanding that he was shooting the victim”). The expert can only testify in general terms about the effects of a D’s mental condition without linking it to the particular case, such as “D has schizophrenia. A person with such disease cannot distinguish fact from fantasy.”
Discuss the rule regarding learned treatises in aid of expert testimony.
It is a hearsay exception. The Learned Treatise in Aid of Expert Testimony provides that if a party can establish that a treatise is reliable, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence (hearsay exception), BUT the treatise may not itself be introduced as an exhibit (may not be shown to the jury).
When a treatise is used to aid in expert testimony, how is the authoritativeness of a treatise established?
When a treatise is used to aid in expert testimony, authoritativeness can be established by:
- Your own expert testifies that the treatise is authoritative,
- Your opponent’s expert admits that the treatise is authoritative, OR
- The judge takes “judicial notice” that the treatise is authoritative
What is the general rule regarding cross-examination? Is it a right? Are there limitations?
If a witness testifies but then cannot be cross-examined, the court will strike the witness’s direct testimony from the record.
Cross-examination is a right. Cross-examination is limited to: Matters brought out on direct examination and inferences naturally drawn therefrom; AND Matters affecting the credibility of the witness.
What is the scope of cross-examination? What is the judge’s role in overseeing the examination of witnesses?
The proper subject matter of cross-examination includes matters within the scope of direct examination and matters that affect the witness’s credibility.
The extent or scope of cross-examination is a matter of judicial discretion. The judge may exercise reasonable control over the examination of witnesses to aid the effective ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment or undue embarrassment.
The trial court has the authority to cut off cross-examination when it determines there has been adequate opportunity for meaningful cross-examination. (e.g. 1 day of direct examination compared to 3-4 days of cross examination = excessive)
