4. Witnesses

Question 1

What is the General Rule of Competency Under Rule 601?

Answer 1

Every person is competent to be a witness.

Question 2

What is The Dead Man’s Statute?

Answer 2

A Dead Man Statute disables/disqualifies any witness (i.e., survivor) from testifying about any transaction involving the decedent.

Question 3

What is the Scope of Testimony and Requirements of Personal Knowledge of a Lay Witness under Rule 602?

Answer 3

A lay witness must have personal knowledge of a matter that they are testifying to.

Question 4

Does an expert witness need to have personal knowledge under Rule 602?

Answer 4

No, this rule does not apply to a witness’s expert testimony under Rule 703.

Question 5

What is Oath or Affirmation required under Rule 603?

Answer 5

A witness must declare to testify truthfully by oath or affirmation ‘in a form calculated to awaken his conscience.’

Question 6

What happens if a witness refuses to take an oath or affirmation for religious reasons?

Answer 6

The judge shall NOT allow the witness to testify.

Question 7

What is the requirement of an interpreter under Rule 604?

Answer 7

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Question 8

What is a Judge’s Competency as a witness under Rule 605?

Answer 8

The presiding judge may not testify as a witness at the trial.

Question 9

What is a Juror’s Competency as a Witness under Rule 606(a)?

Answer 9

A juror may NOT testify as a witness before the jury of which they are a member.

Question 10

What juror testimony is excluded under Rule 606(b)?

Answer 10

1. Any statements made during deliberations;
2. thought processes by which jurors reached their decisions; or
3. votes taken to reach the verdict.

Question 11

What is the exception under Rule 606(b)?

Answer 11

Use of racial animus as rationale for jury’s decision.

Question 12

A juror is allowed to testify about:

Answer 12

1. Outside, harmful information that was wrongly shared with them.
2. A juror going to the scene or doing experiments outside of court.
3. A juror being bribed or threatened.
4. Problems that happened in the jury room.

Question 13

What is Impeachment?

Answer 13

Impeachment is evidence which detracts from a witness’s credibility.

Question 14

What are the four possible ways to contradict a witness’s testimony?

Answer 14

1. Using cross-examination to get a witness to concede they were wrong;
2. Using previously-introduced testimony or physical evidence;
3. Showing previous inconsistent statements; or
4. Introducing new evidence after the witness has left the stand.

Question 15

What types of bias are relevant for impeachment?

Answer 15

Bias may exist from a special relationship between the parties, either favorable or hostile.

Question 16

What is the ‘collateral issue’ rule in impeachment?

Answer 16

It bans extrinsic evidence on collateral issues unless the issue is material or important to the outcome of the case.

Question 17

When is impeachment evidence relevant?

Answer 17

Impeachment evidence is always relevant, even if beyond the scope of the direct examination.

Question 18

What are the seven methods of Impeachment?

Answer 18

1. Interest, motive, or bias
2. Incapacity to observe, recall, or relate
3. Prior Inconsistent Statements
4. Character evidence for truthfulness by reputation or opinion
5. Character evidence for truthfulness by ‘prior bad acts’
6. Prior Conviction of crime
7. Contradiction.

Question 19

What is Rehabilitation evidence?

Answer 19

Evidence which detracts from the impeachment is admissible after a witness is impeached.

Question 20

What are three methods to rehabilitate a witness?

Answer 20

1. Explain or deny
2. Prior Consistent Statement
3. Character evidence for truthfulness by reputation or opinion.

Question 21

Who may impeach a witness under Rule 607?

Answer 21

The credibility of a witness may be attacked by any party, including the party calling the witness.

Question 22

What is required for Impeachment by Conviction of a Crime in Georgia?

Answer 22

Under Georgia law, the prosecution must provide pretrial notice of its intent to offer “other crimes, wrongs, or acts” evidence.

Question 23

When is notice not required for Impeachment by Conviction of a Crime in Georgia?

Answer 23

No notice is required if such evidence is offered to prove the circumstances surrounding the charged offense, motive, or prior difficulties between the accused and the victim, when relevant.

Question 24

What is Rule 608(a)?

Answer 24

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for truthfulness or untruthfulness.

Question 25

When can a party bolster a witness's testimony under Rule 608?

Answer 25

A party may not bolster or accredit the testimony of their witness until the witness has been impeached.

Question 26

What is Impeachment by Prior Bad Acts under Rule 608(b)?

Answer 26

Specific acts of a witness’s conduct that are probative for their truthfulness are admissible for attacking or supporting credibility.

Question 27

What is the permitted method to impeach by Prior Bad Acts Under Rule 608(b)?

Answer 27

A question; and on cross-examination inquiring into the witness’s own prior bad acts.

Question 28

What is collateral matter evidence?

Answer 28

Evidence solely affecting the credibility of a witness; it’s otherwise irrelevant to the cause of action or defense.

Question 29

What is Impeachment on a Collateral Matter Rule?

Answer 29

While impeaching on a collateral matter, the cross-examiner is bound by the witness's answer.

Question 30

What is the requirement for prior convictions to be used for impeachment under Rule 609?

Answer 30

Prior convictions may be used if the conviction is for a crime punishable for more than one year (a felony).

Question 31

What is Rule 609(a)(1)(A)?

Answer 31

Evidence of a prior criminal conviction for a crime punishable by death or imprisonment for more than one year is admissible to attack the witness's character for truthfulness.

Question 32

What is Rule 609(a)(1)(B)?

Answer 32

In a criminal case in which the witness is a defendant, evidence of a prior conviction for a crime punishable by death or imprisonment for more than one year is admissible if the probative value is greater than its prejudicial effect.

Question 33

What are the five factors to determine when prior felony convictions are admissible under Rule 609(a)(1)(B)?

Answer 33

* Impeachment value of the former crime * Timing of the Prior Conviction and Subsequent Criminality * Similarity between the Prior Crime and the Charged One * Importance of the Defendant’s Testimony * Centrality of Credibility.

Question 34

What is Rule 609(a)(2)?

Answer 34

In a criminal prosecution, evidence of a previous conviction for any crime involving a dishonest act or a false statement must be admitted.

Question 35

Are crimes 10 years old or less involving dishonesty or false statement admissible for impeachment under Rule 609(a)(2)?

Answer 35

Yes, admission to impeach is mandatory.

Question 36

What does Rule 609(a)(2) state regarding evidence of previous convictions?

Answer 36

Evidence of a previous conviction for any crime involving a dishonest act or a false statement must be admitted by the court if offered against a witness.

Question 37

Are crimes 10 years old or less involving dishonesty or false statement admissible evidence for impeachment under Rule 609(a)(2)?

Answer 37

Yes, if 10 years old or less, admission to impeach is mandatory.

Question 38

What are examples of admissible crimes involving dishonesty or false statement under Rule 609(a)(2)?

Answer 38

* perjury * forgery * theft specifically involving a lie * criminal fraud * any crime involving some element of deceit, untruthfulness, or falsification.

Question 39

What are examples of inadmissible crimes under Rule 609(a)(2)?

Answer 39

* assault/battery * prostitution * DUI * possession of drugs * theft in general, not involving a lie.

Question 40

What is the significance of Rule 609(b) regarding convictions more than 10 years old?

Answer 40

Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect and notice is given to the opponent.

Question 41

How is the 10 years measured under Rule 609(b)?

Answer 41

The 10 years is measured from the date of the conviction or date of release from confinement, whichever is later.

Question 42

What does Rule 609(c) state about the effect of a pardon or annulment?

Answer 42

A conviction is inadmissible if it has been pardoned, annulled, or found innocent, unless there is a later conviction with a sentence of death or over one year imprisonment.

Question 43

What is the condition for admissibility of juvenile adjudications under Rule 609(d)?

Answer 43

Evidence of a juvenile adjudication is admissible only if it is offered in a criminal case and meets specific criteria related to credibility.

Question 44

What does Rule 609(e) state regarding convictions under appeal?

Answer 44

A conviction under appeal or evidence of the pendency is admissible.

Question 45

Is a conviction in another state or federal court admissible to impeach?

Answer 45

Yes, a conviction in another state or in a federal court is admissible to impeach.

Question 46

Is a nolo contendere plea admissible to impeach?

Answer 46

Yes, a nolo contendere plea may be used to impeach in a subsequent civil or criminal proceeding.

Question 47

What does Rule 610 state regarding religious beliefs or opinions?

Answer 47

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Question 48

What is the purpose of Rule 611(a)?

Answer 48

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence to make procedures effective for determining the truth.

Question 49

What does Rule 611(b) state about the scope of cross-examination?

Answer 49

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may, in the exercise of discretion, permit inquiry into additional matters as If on direct examination.

Question 50

Cross-Examination in Georgia

Answer 50

Georgia allows very broad cross-examination. Anything that is material and relevant to the controversy is fair game.

Question 51

When are leading questions allowed according to Rule 611(c)?

Answer 51

Leading questions are allowed on cross-examination and when calling a hostile witness.

Question 52

What are the four situations in which judges most often allow attorneys to lead witnesses on direct examination?

Answer 52

* To establish pedigree information * To direct a witness’s attention to a relevant place and time * To help a witness who is hesitant or confused * Hostile witnesses.

Question 53

What does Rule 612 state about refreshing a witness's memory?

Answer 53

Refreshing may be accomplished by handing the writing to the witness, accompanied by a request to the witness to read the writing to himself. Thereupon counsel retrieves the writing and repeats the question. At this point, the witness testifies from his own jogged present recollection.

Question 54

Does the document used need to had been created by the witness in order to use it to refresh his recollection?

Answer 54

No.

Question 55

What rights does the opponent have after a party introduces evidence to refresh a witness's memory?

Answer 55

* Inspect the evidence * Cross-examine with the evidence * Show the writing to the jury for comparison * Introduce relevant portions into evidence.

Question 56

What happens when privileged material is used to refresh a witness's memory?

Answer 56

The court will rule that a waiver has occurred and allow the adverse party to inspect the material.

Question 57

What does Rule 613(a) state about a witness's prior statement?

Answer 57

When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness.

Question 58

How is a witness's prior inconsistent statement used for impeachment?

Answer 58

A prior inconsistent statement is not admissible substantively and cannot be used for any purpose other than the impact on the witness’s credibility.

Question 59

Prior Inconsistent statement in Georgia

Answer 59

Under Georgia law, a prior inconsistent statement of a witness is admissible both to impeach the witness and if the witness is available for cross-examination, as substantive evidence.

Question 60

What is Rule 613(b) regarding extrinsic evidence of a prior inconsistent statement?

Answer 60

Extrinsic evidence is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness.

Question 61

What is Rule 614(a) about the court calling a witness?

Answer 61

The court may call a witness on its own or at a party’s request, and each party is entitled to cross-examine the witness.

Question 62

What does Rule 615 state about excluding witnesses?

Answer 62

At a party’s request, the court must order witnesses excluded so they cannot hear other witnesses’ testimony.