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BJW Evidence > Witnesses > Flashcards

Witnesses Flashcards

1
Q

True or False: Every witness is presumed competent?

A

True. Unless proven otherwise

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2
Q

In diversity cases, how is witness competence determined?

A

By state law.

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3
Q

Rule 602 - Re. lay witnesses

A

Lay witnesses must have personal knowledge and they cannot speculate or hypothesize.
- expert witnesses can speculate or hypothesize

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4
Q

Rule 603 (oath)

A

Witnesses must take an oath or an affirmation to impress a duty of conscience.

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5
Q

Must interpreters take an oath?

A

yes, (604)

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6
Q

Are judges allowed to be witnesses?

A

Not at a trial over which they preside. Rule 605

- there is no objection required because this is a plain error.

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7
Q

Are jurors allowed to be witnesses in the trial they are a juror for?

A

Not at trial in front of their co-jurors.

- opposing counsel must be given opportunity to object outside the presence of the jury.

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8
Q

After a trial what are jurors prohibited from testifying about?

A

1) statements made during deliberation
2) effect of anything on a juror’s particular vote
3) a juror’s mental process

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9
Q

After the trial, what may a juror testify about?

A

1) Existence of extraneous prejudicial information that was brought in
2) Outside improper influences
3) Mistake in entering the verdict on the form. (Doesn’t extend to mistakes about the consequences of a verdict)

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10
Q

When may a child be a witness?

A

When the court decides the child has competency by weighing:

1) Intelligence
2) Ability to distinguish between truth and falsehood
3) Understanding the importance of telling the truth

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11
Q

What is a dead man statute?

A

A statute that prohibits a party that has a financial interest in a civil case from testifying about a communication or transaction with a dead person whose estate is a party to that suit when the alleged communication is adverse to the estate.

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12
Q

Is there a federal dead man’s statute?

A

No.

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13
Q

Who may impeach a witness?

A

Any party - even the party calling the witness.

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14
Q

What are the bases for challenging a witnesses’ credibility?

A

1) Bias
2) Character for untruthfulness
3) Inability to perceive what they’re testifying about
4) prior inconsistent statements
5) another contradictory witness or evidence

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15
Q

How can you impeach a witness’s character for truthfulness?

A

1) Reputation
2) Opinion
3) Specific Instances

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16
Q

When can a party introduce evidence showing a witness’s character for truthfulness

A

Only after it has first been attacked.

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17
Q

When can specific instances of conduct be used to show untruthfulness of a witness?

A

On cross specific instances can be asked about if its regarding truthfulness of the witness or another witness about whose character the witness being cross-examined testified.

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18
Q

What are the limits on cross-examination regarding specific instances of conduct?

A

1) Must have a good faith belief in prior misconduct

2) may not cross-examine a witness about an arrest, but may about the underlying conduct that led to the arrest.

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19
Q

What is the rule on introducing the criminal convictions of a witness (609)

A

Conviction of a prior crime is a possible basis for impeaching a witness’s character for truthfulness subject to limitations.

20
Q

What are the limitations on introducing a witness’s criminal convictions to impeach a witness’s character for truthfulness?

A

1) For crimes involving dishonesty or false statements such as fraud, perjury, embezzlement and false pretenses, any prior conviction is admissible if it happened in past 10 years whether misdemeanor or felony.
2) Crimes not involving dishonesty admissible only if they are punishable by death or imprisonment more than 1 year (ie felony). Only allowed for up to 10 years after conviction.

21
Q

When are a witness’s convictions more than 10 years old admissible?

A

Only if the party offering the evidence shows that the probative value of the conviction substantially outweighs the risk of unfair prejudice. Proponent must give reasonable notice of the intent to use the evidence.

22
Q

When is a witness’s conviction evidence not admissible (609(c))

A
  • Pardoned
  • Annulled
  • Later found innocent
  • Rehabilitated
23
Q

May a defendant who is also a witness have juvenile convictions used against him/her?

A

No.

24
Q

If a witness isn’t a defendant, when may juvenile convictions be used?

A
  • Offered to impeach truthfulness
  • in a criminal case
  • would be admissible if an adult conviction would be admissible
  • admitting evidence is necessary for a fair determination of guilt or innocence.
25
Q

Can a criminal defendant use a witness’s juvenile conviction to impeach by showing bias?

A

Yes.

26
Q

How can a party prove prior convictions?

A
  • Witness’ admission

- Extrinsic evidence such as the record of conviction

27
Q

Does the pendency of an appeal impact impeachment?

A

No, but it is also admissible

28
Q

What is the rule of the prior inconsistent statement?

A

It may be used to impeach and it need not be a sworn statement.

29
Q

To whom does an attorney need to show the prior inconsistent statement?

A

To opposing counsel if requested, but need not show it to the witness.

30
Q

When may an attorney introduce extrinsic evidence of a prior inconsistent statement?

A

Only when the witness is given the opportunity to explain or deny the prior inconsistent statement before or after its admitted.

Exceptions:

  • impeaching a hearsay defendant
  • can’t be used for an irrelevant matter
  • admission of a ______
31
Q

What are situations when a witness has a bias and how must it be shown?

A

Situations: relationship to a party or victim, outcome of a case, interest in testifying

Foundation must be laid before extrinsic evidence can be introduced.

32
Q

Sensory Competence

A

A witness may be impeached because of their inability to perceive, recall or relate information

33
Q

How to impeach a hearsay declarant

A

may be impeached by any evidence that would have been admissible had the declarant testified

34
Q

How to rehabilitate a witness who has been impeached:

A

explanation on redirect.

  • reputation or opinion evidence w/ regard to character for truthfulness if witness’s character was attacked
  • prior consistent statement to rebut a charge that the witness lied.
35
Q

Religious beliefs and opinions of the witness

A

are not admissible to attack or support credibility but they may be used to show bias or interest.

36
Q

Contradictory evidence and witness impeachment

A

A witness may be impeached by contradictory evidence

37
Q

Present recollection refreshed

A

A witness may examine any item to refresh the witness memory but may not use the item while testifying and the item isn’t introduced into evidence.

38
Q

What are opposing counsel’s options when a witness’s present recollection is refreshed?

A
  • Right to inspect the refreshing item
  • opposing counsel can introduce the item into evidence.
  • in a criminal case if prosecution doesn’ tproduce the evidence, the court may strike the testimony and declare a mistrial
39
Q

Past Recollection Recorded

A

A memorandum or record regarding a matter about which a witness once had knowledge but now has insufficient recollection upon which to testify (ie. journal)

40
Q

Difference b/w present recollection refreshed and past recorded recollection

A

The item used to refresh the witness’s present memory is usually NOT ADMITTED into evidence.
But the recorded recollection may be put into evidence.

41
Q

Rule of opinion testimony with Lay Witnesses

A

Generally may not testify about an opinion unless it is a sense impression based on perception.

  • must be helpful to clarify the understanding of a fact at issue
  • can’t be scientific or technical in nature.
42
Q

What are the prerequisites for an expert to testify:

A

Court must find that the testimony is scientific, technical or specialized and relevant.

43
Q

How is a witness qualified to testify as an expert?

A
  • Possessing knowledge, skill, experience, training or education
  • Testimony is based on sufficient facts or data
  • testimony is the product of reliable principles and methods
  • witness applied those principles and methods to the facts of the case
  • expert posses a reasonable degree of certainty
44
Q

May an expert give an opinion on the ultimate issue?

A

Yes, but they may not opine on whether a criminal defendant had the requisite mental state for the crime charged.

45
Q

Upon what may an expert base his/her opinions?

A

Personal observations

Data provided

46
Q

If the facts underlying an expert’s opinion are inadmissible, may an expert’s opinion still be admitted?

A

yes, if experts in the field would rely on that data

47
Q

May the court appoint an expert?

A

Yes , if expert and advises both parties of findings and each party may depose.

BJW Evidence (6 decks)

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