Witnesses

Question 1

Can children be witnesses?

Answer 1

Competency of children is case by case based on the individual child

Question 2

Can an insane person be a witness?

Answer 2

Yes, they may testify if they understand the obligation to speak truthfully and have the capacity to testify accurately

Question 3

When can a juror testify?

Answer 3

External prejudicial information was improperly brought to jury’s attention; outside influence; mistake on verdict form; any juror clearly stated they relied on race or animus to convict a criminal D

Question 4

What is a Dead Man Act?

Answer 4

In a civil case, an interested person (or their predecessor) is incompetent to testify to a personal transaction or communication with the deceased when the testimony is offered against the representative or successors of the deceased.

Question 5

When does the Dead Man Act apply?

Answer 5

Only when question says it does

Question 6

What are the requirements for opinion testimony by a lay witness?

Answer 6

Opinions by lay experts are usually inadmissible. But where they are admissible, it must be:
- Validly based on W’s perception
- Helpful to the jury
- Not based on specialized knowledge

Question 7

What are the four requirements for expert witnesses?

Answer 7

1. Subject matter is one where specialized knowledge will assist the trier of fact
2. Opinion is based on sufficient facts or data
3. Opinion is the product of reliable principles and methods
4. Expert must have reliably applied the principles and methods to the facts of the case

Question 8

The expert witness can be based on:

Answer 8

1. Facts based on the expert’s personal observations
2. Facts made known to the expert at trial
3. Facts not known personally but supplied outside of court, reasonably relied on by other experts

Question 9

Can the expert provide a guess?

Answer 9

No - mere speculation is not sufficient. They must have reasonable probability regarding their opinion.

Question 10

What are the Daubert factors used for?

Answer 10

For the judge to determine the reliability of an expert’s principles and methodologies

Question 11

What are the 4 Daubert factors?

Answer 11

TRAP
- T: testing of principle or methodology
- R: rate of error
- A: acceptance by other experts
- P: peer review and publication

Question 12

Can excerpts from learned treatise be admissible during expert testimony?

Answer 12

It can be used to impeach experts and as substantive evidence. It can be read into evidence but cannot be received as an exhibit.

Question 13

Can an expert give an opinion as to ultimate issues?

Answer 13

Yes, except for criminal case where D’s mental state is at issue an expert cannot give opinion as to whether D had the mental state at issue

Question 14

Do witnesses have to be excluded from the courtroom?

Answer 14

If a party requests it, the judge must order W’s excluded from the courtroom.